
Class _A_Kzrrj^ 
Book._ • ">r. 



%iight}^i 



COCXRIGHT DEPOSIT. 



By FRANCIS N. THORPE 



THE GOVERNMENT OF THE PEOPLE OF THE UNITED STATES 

FBANKLIN AND THE UNIVEK3ITT OF PENNSYLVANIA 

THE STORY OF THE CONSTITUTION 

THE GOVERNMENT OF THE STATE OF PENNSYLVANIA 

THE CONSTITUTION OF THE UNITED STATES WITH BIBLIOGRAPHY 

A (state) CONSTITUTIONAL HISTORY OF THE AMERICAN PEOPLE 1776- 

1850 (2 VOLS.) 

THE CONSTITUTIONAL HISTORY OF THE UNITED STATES 1765-1895 
(3 VOLS.) 

A HISTORY OF THE UNITED STATES FOR SCHOOLS 

A (social AND INDUSTRIAL) HISTORY OF THE AMERICAN PEOPLE 

THE LIFE OF WILLIAM PEPPER, M.D., LL.D. 

THE SPOILS OF EMPIRE — A ROMANCE OF THE OLD WORLD AND THE 
NEW 

SHORT CONSTITUTIONAL HISTORY OF THE UNITED STATES 

THE DIVINING ROD 

THE HISTORY OF THE CIVIL WAR — NATIONAL VIEW 

THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, 
AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES AND 
COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES 
OF AMERICA (7 VOLS.) 

HISTORY: THE CAREER OF MAN ON THE EARTH 

THE STATESMANSHIP OF ANDREW JACKSON 

AN AMERICAN FRUIT FARM 

THE ESSENTIALS OF AMERICAN CONSTITUTIONAL LAW 



THE ESSENTIALS OF 
AMERICAN GOVERNMENT 



The Essentials 

of 

American Government 



By 

Francis Newton Thorpe, Ph.D.,LL.D, 

Professor of Political Science and Constitutional Law 
University of Pittsburgh 

Author of "The Constitutional History of the United States"; "The 

Essentials of American Constitutional Law"; (Editor of) 

"American Constitutions, Charters, and Organic 

Laws of the United States," etc., etc. 



^ 



G. P. Putnam's Sons 

New York and London 

^be f!nicl^er&ocf^er press 

1922 




IK 



Copyright, 1922 

by 

Francit N. Thorpe 



Made in the United States of America 




OCT 21 '22 

©CU683786 



* AD * JUVENES * 

* LEGUM * STUDIOSOS * 

* QUANDO * 
* ADVOCATOS * JUDICES ' 

* LEGISLATORES * 

* HODIE * 

* ANNORUM * AMICOS * 

* HIC * LIBELLUS * 

* DEDICATUS * 



The principle of representation is the pivot on which the 
American and all other Republics move. 

—The FederaUst, LXIII. 

" For one may not imagine man's unjust decrees to be laws* 
all men defining law to arise out of the fountain of justice." 

— Cicero, De Le gibus, I. 

" The wise man is the State." — Emerson, Politics. 



SUGGESTIONS 

It is somewhat presumptuous to attempt to 
reduce American Government to its essential 
principles. The subject is diflScult — more or less 
technical and quite beyond the compass of any 
one book. Therefore, in writing the present 
volume, the author cites many books in which 
the matter under immediate consideration is 
discussed at length. The rule of rules for the 
student of American government is Multum, not 
Multa. There is peril, if only the principle be 
considered, that what knowledge is gained will 
be an acquaintance with abstractions; if the ex- 
ample, or illustration alone is considered, the 
peril is of a memory of facts more or less tem- 
porary, or isolated. Government is essentially 
organic in nature and must be studied as an 
organism. 

In order to make possible a fair knowledge of 
our government in its various forms or applica- 
tions, a person should have experience in its 



X Suggestions 

operations — but such experience is practically 
possible for few. Knowledge must be gained 
from books, or from intercourse with officials, or 
from observation of the workings of government 
in its numberless details — and such knowledge is 
possible to few. Therefore books remain the 
principle source of information. A brief selec- 
tion of authoritative books on the subject in hand 
is given at the close of the present volume, and 
references to such books are freely made in the 
several chapters. There is a large mass of cur- 
rent publications on the subject, varying from 
the Congressional Record, to editorials, pam- 
phlets, and articles in newspapers and magazines. 
Important contributions to an understanding 
of American Government are the utterances, 
printed or oral, characteristic of any political 
campaign. The available sources of information 
concerning government in America are therefore 
innumerable. The present work — The Essentials 
of American Government — undertakes to call 
attention, in a simple way to the principles on 
which that government rests. These principles 
are few in number; the application of them is 
various; the examples are innumerable. That 
person understands American Government who 



Suggestions xi 

knows the principle exemplified by any operation 
of it. It is possible to know the particular opera- 
tion and not to understand the principle. 

If this volume is used as a textbook, the in- 
structor will undoubtedly supplement the mate- 
rial here presented, with lectures discussing more 
or less at length, according to the time available, 
the essentials here presented. Thus if he uses his 
own information, or that conveyed in the vol- 
umes of a selected library on the subject (such 
as is outlined at the close of the volume) he can 
bring to his class a vast mass of fresh information 
which, given in form of lectures, may be sub- 
stantially recorded by the student in his notes. 
A small, compact textbook which presents a 
general outline of the subject, placed in the hands 
of the student and supplemented by lectures by 
the instructor, with quizzes, discussions, note- 
taking, and examinations — oral and written — 
with utilization of authorities, documentary 
matter and readings by the student, should 
produce the results desired. If the book given to 
the student contains an excessive amount of de- 
tails, the work is in peril of becoming merely of 
memory instead of reflection. Recitation from a 
textbook gives results incomparably inferior to 



xii Suggestions 

those to be secured from a combination of text- 
book lectures, notes, and the traditional discus- 
sions and examinations. 

The instructor may advantageously bring into 
the class an authority — (be it primary as a docu- 
ment, or secondary as a treatise) — and read from 
it as may seem expedient, or he can have the pas- 
sage or passages made available to the class by 
mimeograph or blackboard copy. The living 
voice of the instructor will always be found to be 
the most valuable organ, or instrument in in- 
struction. It is more desirable that the student 
should master and understand a few things well 
than many things badly. The classic Socratic 
method of instruction by suggestive questioning 
has never been surpassed in value, nor wisely 
supplanted. It may be remembered that the 
student is likely to spend his life in America and 
should ever be increasing his possession of de- 
tailed facts about American government. If he 
is well grounded in the principles of that govern- 
ment, the details he may learn through life will 
arrange themselves according to these principles. 
Procedure of this sort in the study of American 
Government is precisely the procedure followed 
in technical schools, — such as those of Law or of 



Suggestions xiii 

Medicine. The principles of law, illustrated by 
relevant cases, are essentially all that the best 
of Law Schools attempt to teach. It is reason- 
able to suppose that if a lawyer can grasp legal 
principles he can understand particular cases. 
It may well be doubted whether a multiplicity of 
details, complex in character and memorized 
more or less arbitrarily, are as educational as 
adequate reflection on the principles which the 
details merely illustrate. Whether or not the 
instruction in any subject be of fundamentals 
carefully but not too voluminously illustrated, — 
or be memoriter and encyclopedic, — and instruc- 
tors appear to be divided in opinion as to the 
relative merits of the two methods, — this little 
book is written and sent forth for the use of the 
profession, with the appreciation of the author of 
the reception given his former contributions to 
the study of American Government, — State and 
National. 

Francis Newton Thorpe. 

University of Pittsburgh, 

Department of Political Science, 1922. 



CONTENTS 



HAPTER 






PAGE 




Suggestions 


. 


vii 


I.- 


—Sovereignty 


. 


3 


II.- 


—The Fundamentals of 


Government 


10 


III.- 


—The American State 


• 


16 


IV.- 


—The United States 


. 


27 


V.- 


—The Citizen 


. . 


40 


VI.- 


—Cities 


. 


. 47 


VII.- 


—The Supreme Law 


. 


. 61 


VIII. 


—The Legislative 


. 


. 70 


IX. 


—The Executive . 


. 


. 88 


X. 


—The Judiciary 


. 


. 96 


XI. 


—The Administrative 


. 


. 107 


XII. 


— Political Parties 


. 


. 115 


XIII. 


—Public Opinion 


. 


. 124 


XIV. 


—International Relatk 


)NS . 


. 133 


XV. 


—The Principles of Am 


erican Govern- 






ment 


, , 


. 142 



XV 



XVI 



Contents 



Appendix: 

I. — A Word About the Books 



III.— Cases Cited 
IV. — Index 



149 



II. — The Constitution of the 
United States of America . 155 



183 
185 



THE ESSENTIALS OF 
AMERICAN GOVERNMENT 



THE ESSENTIALS OF 
AMERICAN GOVERNMENT 

CHAPTER I 

SOVEREIGNTY 

1. In any country, government takes the 
form given it by the prevaiHng idea of sover- 
eignty. Government means control and refers 
primarily to the public business. The grand 
movement in government, — as recorded by his- 
tory, is from individualism to communism: that 
is, from control of human interests by one, and 
for one, — the individual, to control by all, for 
all, — the community, — the whole people. Sover- 
eignty, therefore, has a different meaning at 
different times, and among different peoples. 
Doubtless the extreme differences in its meaning 
are seen in the differences between a government 
which is embodied in one person, — that is, an 
absolute monarchy; and a government which is 



4 Essentials of American Government 

embodied in all persons, — that is a free de- 
mocracy. Neither such a monarchy nor such 
a democracy exists to-day. 

2. Democracy means rule or government by 
the people. The Constitution of the United 
States which defines itself as "the supreme law of 
the land," also declares itself as "ordained and 
established by the people of the United States." 
It also declares that "representatives" and 
"taxes" shall be apportioned among people of 
the several States, though taxes on incomes may 
be laid and collected without apportionment and 
without regard to any census. 

3. Representatives are apportioned to popu- 
lation, and the principle of representation is the 
basis of American government, — Federal, State, 
and of course, the subdivisions of the State, 
counties, cities, towns, boroughs, townships, and 
villages. In other words, ours is a republican, or 
representative government. The Supreme Law 
of America declares that "the United States 
shall guarantee to each State a republican form 
of government." 

4. No less an authority than Madison, in the 
Federalist,"^ the classic exposition of the meaning 

* No. xxxix. 



Sovereignty 5 

of the Constitution, and of the nature of our 
government, — explains and defines it: 

5. The Constitution, or form of government 
under which we hve, national or State, is founded 
on the assent and ratification of the people of 
America, given by their representatives elected 
by them for the special purpose. 

6. In assenting to the Constitution, the peo- 
ple acted by States, — because, as Chief-Justice 
Marshall has said, they could act in no other 
way/ The representatives of the people, in 
either branch of Congress, or of the State Legis- 
latures derive their powers from the people. So 
too do all governors and judges, for these also 
represent the people. The mere procedure by 
which a public servant attains office, whether by 
direct election by the people, — as is the case of all 
members of Congress and State Legislatures, 
also of Governors and with few exceptions, of 
State judges, — or by indirect election, as in case 
of the President of the United States; or of ap- 
pointment by the President, — as in case of mem- 
bers of the Cabinet, of federal judges, or federal 
ofiicials in any public service, — or of appoint- 
ments by a governor, of whatsoever rank, is 

» McCuUoch V. Maryland, 4 Wheaton, 316 (1819). 



6 Essentials of American Government 

essentially based upon the representative prin- 
ciple. The source of authority in every instance 
is the people. Be that authority legislative, 
executive, justicial, or administrative, it is 
created and exists by the will of the people. Law- 
makers, governors, presidents, judges, adminis- 
trative officials, all and each, are public servants, 
— chosen by the people as their agents. 

7. Thus, in American government, we come 
to the people of the United States as the sole 
source of governmental authority. This pro- 
found truth is well expressed by Bryce: "To the 
people we come sooner or later; it is upon their 
wisdom and self-restraint that the stability of 
the most cunningly devised scheme of govern- 
ment will in the last resort depend." 

8. Sovereignty, in America, resides in the 
American people. State sovereignty, in the 
people of a State; national sovereignty, in the 
people of the United States. Constitutions of 
government. State or national, are schemes for 
conducting the public business of the State, or of 
the United States. The sovereign people, of the 
State, or of the United States, limit the power of 
their agents, — public officials, by these constitu- 
tions. In a State constitution, the fundamental 



Sovereignty 7 

limitation is the Bill of Rights; in the federal 
Constitution, the limitation is the instrument 
itself. The nearest approach to an unlimited 
grant of power by the sovereign to its agent is 
the Sixteenth Amendment to the Constitution of 
the United States. In the administration of the 
two governments, — the State and the Federal, 
each exercises delegated powers. The word "ju- 
risdiction" is commonly used as synonymous with 
"sovereignty." Thus, the public jurisdiction 
of a State is a measure of its sovereignty. Other 
words are, "power," "authority," and some- 
times, "right" or "rights." 

9. The word "sovereignty," or "sovereign" 
does not occur in the Constitution of the United 
States. The United States is a Nation, and its 
existence implies sovereignty. The "police 
power" or "jurisdiction" of a State is sometimes 
called " residuary sovereignty." As yet no exact, 
definite, unchangeable line of demarcation has 
been drawn between State sovereignty, and 
national (federal) sovereignty. We are now 
prepared for the decision of the Supreme Court, 
as to sovereignty:' 

' Yick Wo V. Hopkins, 118 U. S. 356 (1886) (here quoted). The 
grand issue, National v. State sovereignty, is discussed in McCul- 



8 Essentials of American Government 

When we consider the nature and the theory of our 
institutions of government and the principles upon which 
these are supposed to rest, and review the history of their 
development, we are constrained to conclude that they 
do not mean to leave room for the plan and action of 
purely personal power. Sovereignty itself is, of course, 
not subject to law, for it is the author and source of law; 
but in Guj system, while sovereign powers are delegated 
to the agencies of government, sovereignty itself remains 
with the people, by whom and for whom all government 
exists and acts. And the law is the definition and limita- 
tion of power. It is, indeed, quite true, that there must 
always be lodged somewhere, and in some person or 
body, the authority of final decision; and in many cases 
of mere administration the responsibility is purely politi- 
cal, no appeal lying except to the ultimate tribunal of the 
public judgment, exercised either in the pressure of opin- 
ion or by means of the suffrage. But the fundamental 
right to life, liberty, and the pursuit of happiness, con- 
sidered as individual possessions, are secured by those 
maxims of constitutional law which are the monuments 
showing the victorious progress of the race in securing to 
men the blessings of civilization under the reign of just 
and equal laws, so that, in the famous language of the 
Massachusetts Bill of Rights, the government of the 
Commonwealth " may be a government of laws and not of 
men." For the very idea that one man may be com- 
pelled to hold his life, or the means of living, or any 
material right essential to the enjoyment of life, at the 
mere will of another, seems to be intolerable in any 

loch V. Maryland, 4 Wheaton, 316. There is a vast literature on the 
subject. See the account passim in Beveridge's Life of Marshall; 
also, "The New Nationalism and Its Obligations" by R. S. Baker, in 
American Bar Association Journal, November, 1921, COl-605. 



Sovereignty 9 

country where freedom prevails, as being the essence of 
slavery itself. 

The actual test of all theories is made by the 
administration of government. ^ 

10. Sovereignty in America prescribes the 
procedure by which constitutions, laws, judicial 
decisions, and (public) official appointments 
shall be made. Thus sovereignty determines 
both the substance and the form of government 
in America. "* 

' An admirable presentation of sovereignty may be found in J. W. 
Garner's Introduction to Political Science (see its Index), "Sover- 
eignty." Marshall discriminates between Federal and State Sover- 
eignty in McCulloch v. Maryland, 4 Wheaton, 316 (1819). See id., 
428, 429, 430. Discussion of sovereignty as applying to the Con- 
stitution of the United States recurs in the Federalist. See specially 
Nos. xxxii, xlxx, xlxxx (Lodge Edition). 

* American history supplies many examples and illustrations. 
E.g., the Constitution of the United States; the Louisiana Purchase; 
the Organization of Territories; their admission as States; the proce- 
dure in making a new, or amending an old State constitution. 



CHAPTER II 

THE FUNDAMENTALS OF GOVERNMENT 

1. As government is the conduct of public 
business, and as this business concerns the people 
as a whole, and the people as individuals, the 
fundamentals of government are principles af- 
fecting the people as a whole, or as individuals. 

2. The exact order of these principles may be 
considered as of slight importance. We are 
accustomed to the order observed in the Pre- 
amble to the Constitution of the United States: 

(1) To establish justice. 

(2) To insure domestic tranquillity. 

(3) To provide for the common defense. 

(4) To promote the general welfare. 

(5) To secure the blessings of liberty to our- 
selves and our posterity. 

3. These five purposes of government as set 
forth in the Preamble of the Federal Constitution 
are equally the purposes sought in every State 
constitution. It may be said that the purpose of 

10 



The Fundamentals of Government n 

all is set forth by the first, — "to establish jus- 
tice," — ^for, in the American idea of government, 
the establishing of justice is the securing of all 
the other purposes. To the end that justice may 
be established, government in America exists. 
Legislatures, Governors, Presidents, Congresses, 
Courts of Law, and Administrative officials of 
whatever rank, service or department, are chosen. 
The failure to establish justice is the failure of 
government. That government has excuse for 
being, which establishes, or is the means of 
establishing justice. 

4. In thus establishing justice, every power, 
function, or office of government is engaged. 

(1) Taxes are imposed. 

(2) Moneys are appropriated. 

(3) Representatives, legislative, executive, 
judicial, administrative are chosen. 

(4) Laws are made. 

(5) Decisions are given by courts of law. 

(6) War or peace is declared. 

Indeed, the entire activity of government is a 
ceaseless effort to establish justice. 

5. If you turn to any one of the American 
plans of government, — and there are forty-eight 
State governments and many hundreds of city 



12 Essentials of American Government 

governments, — also the national government, — 
and these plans are the American Constitutions, 
city charters, and laws, you will find the same 
large purpose: the establishing of justice. That 
the American people recognize and accept this 
dominant, this primary principle is shown by 
their respect for law as interpreted by courts of 
law, and notably, by the Supreme Court of the 
United States. That Court is a constitutional 
court and possesses by the will of the sovereign 
people of the United States, supreme judicial 
power. Its members are called "Justices." Its 
presiding member is styled "Chief Justice of the 
United States." Consisting of nine men, this 
Court rules the United States. The official 
opinion of five of these men is the opinion of the 
Court. It exists, — a unique creation in govern- 
ment, — representative of American sovereignty, 
"to establish justice." Its decision in any case 
is final, — unless the Sovereign invalidates that 
opinion, as, for example, it invalidated its opin- 
ion in the Dred Scott case.' That decision was 
nullified by the adoption of the Thirteenth, 



^Dred Scott v. Sanford, 19 Howard, 393 (1857); so Chisholm v. 
Georgia, 2 Dallas, 419 (1793) was nullified by the adoption of the 
Eleventh Amendment. 



The Fundamentals of Government 13 

Fourteenth, and Fifteenth Amendments. The 
sovereign in America is not easily aroused. But 
aroused, he dictates the supreme law. 

6. In establishing, or attempting to establish 
justice, the American people, organized by States 
express their will by the ballot, — as nation, state, 
county, city, township, town, municipality of 
whatever sort. The miscarriage of justice, — in 
our common speech, — refers to errors, or seeming 
errors, in strictly judicial proceedings; but in a 
large, and equally correct sense, justice may be 
missed or ignored by lawmakers, governors, or 
administrative officials. 

7. There is a maxim of law that every legal 
wrong has a legal remedy. This maxim, which 
points to a principle of government in America, 
may be better understood by means of illustra- 
tions. Thus our legislatures consist of two 
branches or houses. A bill or resolution is thus 
considered by two independent bodies. Having 
passed these bodies, the bill goes to the executive 
for his approval. He (influenced more or less by 
his Cabinet, or Council of Advisors) approves or 
disapproves the bill, — thus subjecting it to a 
third test. If passed by the legislature over his 
veto (disapproval, — for which he sets forth his 



14 Essentials of American Government 

reasons) it is again subject to scrutiny. But the 
test does not necessarily stop here. The large 
question may be raised, in the prescribed way, 
*'Has the legislature power to enact this law?" 
a question which only a Court of Law can 
answer, — and a Court of law "hears before it 
condemns; proceeds upon inquiry, and renders 
judgment only after trial." ^ 

8. Thus the legality (constitutionality) of the 
law is authoritatively known. It will be noted 
that the supreme test is that of power, which 
means. Has the American sovereign, the people 
of the United States (or of a State) empowered 
the Legislature to enact this (so-called) law.^* 
And no other final test is possible, according to 
the American system of government. That the 
sovereign people could empower (say) Congress 
to enact such a "law" as the "Civil Rights Bill" 
(April 9, 1866; March 1, 1895)," and having 
empowered Congress to enact such a law, such a 
law was enacted, the constitutionality of such a 
law would be sustained by the Supreme Court, — 
because Congress was empowered to make such a law. 

9. Thus the constitutionality of our laws 

' Webster, in the Dartmouth College Case, 

» Declared unconstitutional, U. S. v. Stanley, 109 U. S. 3 (1883). 



The Fundamentals of Government 15 

depend, primarily, on the delegation of power, by 
the sovereign people, to enact such laws. And 
by our system of government, our courts of 
law decide whether a legislative body has power 
(so delegated) to enact such laws/ The conclu- 
sion inevitable from these conditions is that the 
sovereign power in a state (whatever it be, — 
nation, commonwealth, empire, &c.) declares, 
determines, establishes, what is justice, domestic 
tranquillity, common defense, general welfare, 
and ideas of liberty. We get back to sovereignty 
whenever we trace the fundamentals of govern- 
ment to their source. Whatever sovereignty 
declares is justice, or any other fundamental 
right, is — legally speaking, that fundamental 
right. ^ 

' The principle is discussed by Marshall in Marbury v. Madison, 
1 Cranch, 137 (1803). 

' The question of what are the fundamentals of government in- 
volves ethics. Government rests, or is supposed to rest, on morals. 
That which is legally right may not seem (or be) morally right. All 
moral wrongs (to attempt a synonym for immoral acts) do not have 
legal remedies. Decisions of courts of law are legal decisions. Grave 
difficulties emerge in politics, as in ethics, theology, or any aspect of 
philosophy. But sovereignty establishes the fundamentals in ethics, 
politics, theology, or any aspect of philosophy. But what is sover- 
eignty? Is it a convention agreed upon? The instructor may profit- 
ably take up any of the powers of Congress (Article I., Section 8) 
or similar provisions in a State constitution, and note relations to 
fundamental principles of "a republican form of government." 



CHAPTER III 

THE AMERICAN STATE 

1. The State, or Commonwealth, as the word 
is used in American law and government is "a 
political community of free citizens, occupying a 
territory of defined boundaries, and organized 
under a government sanctioned and limited by a 
written Constitution, and established by the 
consent of the governed. It is the union of such 
States, under a common constitution, which 
forms the distinct and greater political unit, 
which that Constitution designates as the United 
States, and makes of the people and States which 
compose it, one people and one country. . . . 
The Constitution, in all its provisions, looks to an 
indestructible Union of indestructible States."' 
The Constitution was made for States, not for 
cities or territories. Indeed, the three elements 
considered by the Constitution are the States, 
the United States, and the citizen. 

' Texas v. White, 7 Wallace, 700 (1868). 

I6 



The American State i7 

2. The several States which comprise the 
Union are individually equal as civil and politi- 
cal entities. This equality is not and could not 
be geographical, or in wealth, or in population. 
The Constitution, guaranteeing to each State a 
republican form of government, recognizes it as 
a civil and political entity, apportioning repre- 
sentatives among the States according to their 
respective populations. This means that the 
basis of representation of a State in Congress is 
persons, not things. 

3. Within a State, persons, not things, are 
also the basis of representation. Thus funda- 
mentally, the basis of government in America 
both State and federal is persons. It is important 
that this fact be clearly understood. 

4. Seemingly the representation of the States, 
as such equally, in the Senate of the United 
States, — a representation defined in the Con- 
stitution as a State's "equal suffrage in the 
Senate'" is not of persons, but of corporations, — 
because every State is a public corporation, and, 
in law, a corporation is an artificial, not a natu- 
ral person. 

5. But an American State is "a political 

' Article V. 



i8 Essentials of American Government 

community of free citizens," — and as such has 
representation in the persons of its two Senators. 
For many purposes a State is a corporation; but 
as a community represented in the Congress, 
it is a number of free citizens or persons. The 
election of United States Senators by popular 
vote (Seventeenth Amendment),' instead of by 
vote of a State Legislature (Article V., 3), com- 
plies with the fundamental principle of a repre- 
sentative democracy, as defined by Madison. 
The change from the original method of choosing 
Senators is a change in mere method not a change 
in principle. The Senators represent all the 
people within the State. So too do the members 
of the House of Representatives, in the aggre- 
gate. A State is apportioned its number of 
House members. Whether this number shall be 
apportioned to subdivisions of the State, or shall 
be apportioned to the people of the State as a 
whole, — that is, — ^whether the State shall be 
subdivided into Congressional Districts, — the 
people of a District electing a Representative 
(Congressman) or whether the State shall be one 
District and its people elect its entire number 
of Congressmen, — or whether the State shall be 

^ Article V. 



The American State 19 

districted and a part of its number of Represen- 
tatives be so elected, and the remaining number 
be elected on a general ticket, as "Congressmen 
at large," chosen by the people of the States as 
one District, rests wholly with the State Legis- 
lature. 

6. A similar practice may prevail for the 
election of presidential electors. The State 
Legislature is a parliamentary body on the same 
model as the Congress of the United States. It 
is a constitutional, not a statutory body, i.e., its 
existence, organization, term, and powers are 
defined by the State Constitution, not by an act 
of the Legislature. 

7. As the State constitution is, with the 
Constitution of the United States and acts of 
Congress and treaties made in conformity to the 
federal Constitution, — the Supreme Law of the 
State, — the people of the State in making its 
constitution, provide somewhat in detail, for a 
Legislative, an Executive, and a Judiciary, 
securing beyond change, — as far as possible, the 
essential organization, term, and powers of these 
departments of government. As population 
changes and conditions cannot be anticipated, 
the laws regulating representation, whether of 



20 Essentials of American Government 

the people of a State in the federal legislature, or 
in a State Legislature are statutory rather than 
constitutional. Thus the State Legislature dis- 
tricts the State for various representative pur- 
poses, Into 

(1) Congressional Districts. 

(2) (State) Senatorial Districts, 

(3) Assembly Districts, 

(4) (State) Judicial Districts, 

(5 ) (Possibly) Presidential Electional Districts . 
8. The fundamental here is representation. 

The principle as applied in the judicial districting 
is a matter of jurisdiction. The judiciary whose 
jurisdiction is the entire State is elected by the 
people of the entire State, as one district. Judges 
whose jurisdiction is limited to a portion of a 
State are elected by the people' within that por- 
tion, or Judicial District, be it one or more 
counties. But a county is not divided. Every 
county is a civil entity, having its county-seat, 
its judicial equipment, — court-house, law-library , 
court officials, and records. A Law Court is 
held in every county, though it be part of a 



' In Massachusetts, New Jersey and Florida the Governor appoints 
the judges. (But see as to Florida, Constitution, 1885, Art. V., Sec. 8, 
by which the Governor appoints only the Circuit judges.) 



The American State 21 

judicial district. Whatever method of estabUsh- 
ing courts of law may obtain in a State, it is 
fundamentally elective. As in the federal 
Government so in the State, there are no offices 
for life. In Massachusetts as in the appoint- 
ment by the President, the judges hold office 
"during good behavior," but such a term is not 
a term for life. The holder of such an office is 
subject to removal according to law. If he held 
an office for life, he could not be removed. 

The principle here is common to every office 
in the American system of government. Madi- 
son expresses the principle: the government. 
State and federal, is administered "by persons 
holding their offices during pleasure, for a limited 
period, or during good behavior." 

9. Here, too, is applied the principle of 
agency. In a State, its governor, its legislators, 
its judges, its administrative officials are agents 
of the people. They exercise, as such agents, 
executive, legislative, judicial, and administra- 
tive powers delegated to them by the sovereign 
"the people of the State." 

The States stand in like and equal relations 
to the United States, — called federal relations, 
and each State to every State in the Union, in 



22 Essentials of American Government 

the same relations, called inter-State relations. 
Thus, irrespective of population, wealth, area, 
or location the States comprising the American 
Union are on the same footing in every govern- 
mental sense. This means the equality of 
the several States. Reduced to precision, — this 
equality is a legal equality. It is the equality 
signified by the Constitution of the United States : 
"The United States shall guarantee to every 
State in this Union a republican form of govern- 
ment.'" And again, the citizens of each State 
shall be entitled to all privileges and immunities 
of citizens in the several States." "" 

10. Indeed, whatsoever the Supreme Law of 
the Land prescribes as to the States, the equality 
of the States is expressed or implied. No two 
States are equal in any respect save in legal 
rights. This equality conforms to the primary 
purpose of American government, — "to estab- 
lish justice." 

11. The organization of government in the 
respective States varies in many details of 
method, but agrees in principle and consequently 
in purpose. 

12. Every State is subdivided into counties. 

' Art. IV., Sec. 4. ^ -^rt. IV., Sec. 2:1. 



The American State 23 

Each county is also a public corporation. It has 
its complement of officials, — executive, legisla- 
tive, judicial, administrative, — all agents of the 
people. But the county is a part — a subordinate 
division of the State. Excepting officials whose 
jurisdiction is greater than the county, — such 
as the governor, the supreme (superior?) court 
judges, legislators chosen in a district of which the 
county is only a part, — all officials having author- 
ity in a county are elected (directly or indi- 
rectly) by the people of the county. But all 
county officials are State officials to the extent 
that in the execution of their offices they are 
backed by the power of the whole State. For 
example, sheriffs, county commissioners, county 
judges are, in this sense. State officials. Every 
State save one^ is subdivided into counties and 
new counties are created by the Legislature. A 
county is a public corporation, has no executive, 
other than the governor of the State, and has no 
self-government ("home-rule"). It is essentially 

' Louisiana is subdivided into parishes. County government has 
been called "the jungle of American politics." So various is the 
government of counties in America, the instructor may advantage- 
ously consider specially the actual county government within his 
own State. Thus, — as to classification of counties; the list and the 
particular functions of county officials; overlapping offices; "graft"; 
county taxes, and uses and appropriations of county moneys, etc. 



24 Essentials of American Government 

an administrative unit within the State and for 
political purposes is (in whole or part) a legisla- 
tive (assembly, senatorial), or judicial district. 
The State Legislature locates the county seat. 
The people, usually by direct election, give the 
control of county affairs to a group of administra- 
tive officials : the county board (supervisors, com- 
missioners) who (in some States) levy taxes, and 
(in all States) have control of public works, pub- 
lic buildings, bridges and highways, the care of 
the county poor; the sheriff, county clerk, regis- 
trar of deeds, county (district) attorney, treas- 
urer, coroner (and other officials) . In New York 
City, Philadelphia, Chicago, Boston, St. Louis, 
Pittsburgh, and some other large cities, county 
and municipal government are somewhat com- 
bined, resulting in civil confusion. If county 
government in America is to any extent medi- 
ocre, the evil is due to the people themselves who 
elect, or suffer to be elected, mediocre county 
officials. 

13. A county usually contains incorporated 
cities or towns each possessing and exercising 
local government. The authority for such 
"home rule" may be constitutional or statutory.' 

' See Chapter VI, "Cities." 



The American State 25 

The United States is an indestructible union of 
indestructible States. 

14. This means also that the States are as 
necessary to the Union as the Union is to the 
States. When the Constitution of the United 
States was adopted, all the States had govern- 
ments. As the United States by its Constitu- 
tion), bound itself to guarantee to each State a 
republican form of government, the guarantee 
implies that the several States, — then thirteen 
in number, — had such a government. These 
governments the Constitution of the United 
States did not change. "They were accepted 
precisely as they were and it is therefore to be 
presumed that they were such as it was the duty 
of the States to provide. Thus we have unmis- 
takable evidence of what was republican in form 
within the meaning of that term as employed in 
the Constitution." ^ 

15. Each State is an independent govern- 



^ Minor v. Hippersett, 21 Wallace, 182 (1874). See also Luther v. 
Borden, 7 Howard, 1 (1848); Texas v. White, 7 Wallace, 700 (18G8). 
The constitutions (forms of government) of all the States are given in 
The Federal and State Constitutions, Colonial Charters, and Other 
Organic Laws of the States, Territories, and Colonies Now or Heretofore 
Forming the United States of America, compiled and edited (by the 
author) under the Act of Congress of June 30, 1906. Washington 
Government Printing Office, 1909, 7 vols. 



26 Essentials of American Government 

mental power, within its own jurisdiction. No 
State is a nation, nor does it stand in any inter- 
national relations. Precisely what constitutes 
the jurisdiction of an American State is inde- 
finable.' This jurisdiction is determinable from 

(a) the Constitution of the United States, and 

(b) the constitution of the State. It is funda- 
mentally a judicial question. Entering into the 
solution of the question, however, is public 
opinion, politics, — i.e., law and custom. 

16. Were we to enter into detail, in the mat- 
ter of State government, we would discover 
everywhere the presence and the operation of 
the principle of representation.^ 

' Practically the powers — or jurisdiction of an American Common- 
wealth — are determined by judicial interpretation: (a) of its federal 
relations; (b) of its interstate relations. 

" The instructor may profitably pursue the subject of State govern- 
ment into its details. The Manual (usually published by the State) 
supplies the data. 



CHAPTER IV 

THE UNITED STATES 

1. The United States, "the more perfect 
Union" is *'an indestructible Union of inde- 
structible States." It is a public corporation, 
and its Constitution was "framed for ages to 
come."' Whether or not the Constitution of 
American Union was founded on the State 
governments as existing in 1787, it was founded 
on the same plan.^ The representative prin- 
ciple is at the basis of the plan. Essentially, the 
diflFerence between the application of the prin- 
ciple by the States and that by the United States 
lies in the relation of the two to the American 
people. The government of the United States 
is the government of the people of the United 
States, — that is, of the American people as a 
whole, — as a nation. The government of a State 

» Marshall in Cohens v. Virginia, 6 Wheaton, 387-9 (1821). 
' The origin and authorship of the Constitution are narrated at 
length in the author's Constitutional History of the United States. 

27 



28 Essentials of American Government 

or Commonwealth is that of a part of the Amer- 
ican people/ as a local community. Thus the 
Constitution of the United States and all treaties 
made under its authority are "the Supreme law 
of the land." 

2. The judges in every State are bound by 
the supreme law, "anything in the Constitution 
and laws of any State to the contrary notwith- 
standing."" 

The Constitution of the United States works. 
To use a phrase of trade, "it is a going concern." 

3. Experience proves the adaptability of the 
American system of government, — as exemplified 
by that of the United States, — to a continental 
domain. Experience alone can prove whether it 
is adapted to remote and outlying possessions. 
The real question is whether the principle, as 
principles on which federal government in 
America is based, are adapted generally to any 
race, people, climate in the world. The funda- 
mental principle is that of representation. The 
American people are sovereign. They have 
ordained and established the Constitution of the 



' Examined at length by Marshall in Marbury v. Madison, 1 
Cranch, 137 (1803). 
» Art. VI., 2. 



The United States 29 

United States, forming "the more perfect Union" 
for purposes set forth in the Preamble to that 
Constitution. Of these purposes the primary 
and most important is to establish justice. The 
principle applied here is that of representation. 

4. The sovereign people are represented by 
their agents, chosen by themselves to perform 
certain specific functions. These functions are 
recognized and called legislative, executive, and 
judicial. Involved in these functions are the 
ministerial, or administrative functions, and 
generally speaking, these administrative func- 
tions are performed by persons who are ap- 
pointed by legislative, executive, and judicial 
officials who are elected by the people. Thus all 
the authority possessed by the elected or the 
appointed official is delegated by the sovereign, 
— and this means a limited authority. Vast as 
is this authority thus delegated it is never 
sovereign. 

5. A glance at these limitations makes this 
clear : 

(1) The executive is limited in time, by his 
term of office, and specifically, further, by the 
legislative and the judiciary as set forth by the 
Constitution. 



30 Essentials of American Government 

(2) The legislative is limited by the executive 
{e.g., by the veto power) and by the judiciary 
{e.g., its power to declare an act of Congress 
unconstitutional, — that is, null and void). 

(3) The judiciary is limited by the legislative 
and the executive {e.g., by laws defining the or- 
ganization and jurisdiction of federal courts). 

(4) Administrative officials are limited by 
laws which prescribe their duties, powers and 
procedure.^ In other words, no federal official 
is, — as James II claimed for himself, "above 
the law." No person in America is above the 
law. Indeed, as the constitution of Massa- 
chusetts declares, the purpose of the American 
people is that theirs "shall be a government of 
laws, not of men."^ 

6. The most popular State paper known to 

' The principle involved in limitations is well stated by Bryce: 
"The States are carefully safeguarded against aggression by the 
central government. So are individual citizens. Each organ of 
government, the executive, the legislature, the judiciary, is made a 
jealous observer and restrainer of the others. Since the people, being 
too numerous, cannot directly manage their affairs, but must commit 
them to agents, they have resolved to prevent abuses by trusting 
each agent as little as possible, and subjecting him to the oversight 
of other agents, who will harass and check him if he attempts to over- 
step his instructions." The American Commonwealth, Bryce, i., 298 
(First Edition). 

' Constitution 1780. Part I., xxx. This idea is repeatedly stated 
and applied by Chief-Justice Marshall in his judicial opinions. 



The United States 31 

man, — the Declaration of Independence, — utters 
the same principle, that "all men are created 
equal," which means, in governmental mat- 
ters, that all persons are equal before the law; 
that justice is no respecter of persons. 

All governments of antiquity were founded 
and administered on the theory that theirs 
should be a government of men, not of laws. 

7. Yet the American system of government in 
thus making law supreme is not elevating an 
abstraction to primacy. "The law," — said a 
distinguished American judge, "is common 
sense." Happily we have further light on this 
point. Said Lincoln: "Why should there not be, 
a patient confidence in the ultimate justice of 
the people? Is there any better or equal hope in 
the world .'^"' 

8. Of course this confidence carries with it 
moral consequences. What if the people have 
perverted ideas of justice? Dr. Franklin seems 
to have had this thought in mind in his words to 
the Convention which framed the Constitution: 
"I agree to this Constitution with all its faults, 
if such there be; because I think a general 
government necessary for us, and there is no 

' First Inaugural, March 4, 1861, Worka (Century Edition), II., 5. 



32 Essentials of American Government 

form of government but what may be a blessing 
to the people if well administered ; and I believe 
further that this is likely to be well administered 
for a course of years, and can only end in des- 
potism, as other forms have done before it, when 
the people shall become so corrupted as to need 
despotic government, being incapable of any other. "^ 
There is a very wise saying: "As with the people, 
so with the priest."^ It may be said, as with the 
people of the United States, so with the govern- 
ment they establish; as with the people, so 
with the administration. Lincoln is optimistic. 
Franklin is apprehensive; the Bible is historical. 
Any American competent to form a conclusion 
may draw inferences as to the people and the 
Government of the United States. In these days 
when so much is said and done as to American- 
ization, any American is justified in applying in 
the right way Lincoln's thought expressed in his 
Getty sburgh Address, whether *'any nation con- 
ceived in liberty and dedicated to the propo- 
sition that all men are created equal . . . can 
long endure."^ 



^ Elliot, v., 554, September 17, 1787. (Italics mine.) 

» Isaiah, 24:2. 

3 November 19, 1863, Works (Century Edition ), II., 439. 



The United States 33 

9. The profound truth, remarked by Lord 
Bryce, appUes here: "to the people at last we 
come; it is upon their wisdom and self-restraint 
that the stability of the most cunningly devised 
scheme of government will in the last resort 

depend." 

10. That the stability of American Govern- 
ment and institutions depends upon the Amer- 
ican people is a truism applicable to every aspect 
of government, federal and State. 

11. The immediate affairs of life, in America, 
so far as affecting or affected by government 
look to the State rather than to the United 
States. In one form or another most of these 
affairs are by way of contract, the meaning and 
enforcement of which the State determines. 
Thus except by use of the mails, the great 
majority of the American people have no direct 
dealings with the federal Government. The 
mail service is a federal monopoly, warranted 
by the Constitution of the United States. So 
too is the coining of money, and by the term 
"coin" is meant any substance or article declared 
to be "money" by Congress.^ 

12. The mail service, the carriage like other 

' Juillard v. Greenman, 110 U. S. 421 (1884). 
3 



34 Essentials of American Government 

monopolies by the federal Government war- 
ranted by the Constitution are an exercise of 
sovereignty, illustrated also by such acts as the 
purchase of the Louisiana country in 1803, or of 
Florida in 1819.^ 

13. We shall see, when we are considering 
"the citizen" how the United States has power 
to reach and, in a measure, to control, every 
person residing on American soil.^ "The idea 
of a national government," remarks Madison, 
in the Federalist, "involves in it not only author- 
ity over the individual citizens, but an indefinite 
supremacy over all persons and things, so far as 
they are objects of lawful government."^ 

14. This means that the federal government 
operates its powers to the extent of reaching every 
person and everything within its jurisdiction. 
This extent of operation of its powers conforms 
perfectly with the language of the Constitution 
that it is "the supreme law of the land." 

15. But in the exercise of this sovereignty 
only "objects of lawful government" can be 
thus affected. This seeming limitation brings 

' American Insurance Company v. Canter, 1 Peters, 511 (1828). 
Decision by Marshall. 

' Ex parte Siebold, 100 U. S. 371 (1879). 
s No. xxxix. 



The United States 35 

us to the fundamental question: What are, or 
what are not "objects of lawful government"? 
No less an authority than the Supreme Court of 
the United States has answered this question. 
The Government of the United States is one of 
enumerated powers. It can exercise only those 
powers which are granted to it by the Constitu- 
tion. "But the question respecting the extent 
of the powers actually granted is perpetually 
arising, and will probably continue to arise as 
long as our system shall exist." The conflict 
here (if one arises) is likely to be between federal 
powers and State powers, — or, between either 
federal or State powers (as they may be as- 
sumed) and unlawful procedure. Ours is a 
government of laws. There are limitations on 
the extent of federal and of State power. 

16. These limitations are set forth in Declara- 
tions, or Bills of Rights found in every American 
constitution of government. The first ten 
amendments of the federal Constitution comprise 
such a Declaration. Thus, '* private property 
shall not be taken for public use without com- 
pensation"; no person "shall be compelled in 
any criminal case to be a witness against himself, 
nor be deprived of life, liberty, or property, with- 



36 Essentials of American Government 

out due process of law."' Supreme as is the 
Constitution of the United States, sovereign as 
are its people, — the federal Government cannot 
violate or ignore the fundamental rights of per- 
sons and property as laid down by this amend- 
ment. All this seems to establish the truth that 
there is a law higher than the Constitution of the 
United States as may be deduced from the Con- 
stitution itself. But the sovereign power in 
America recognizes the paramount authority of 
this law. Undoubtedly the recognition of this 
fundamental law in the American constitutions 
is, essentially, nothing less than the promulga- 
tion of the law by the American sovereign — the 
people of the United States.^ 

17. The Tenth Amendment to the Constitu- 
tion tells the whole story: "The powers not 
delegated to the United States by the Constitu- 
tion, nor prohibited by it to the States, are re- 
served to the States respectively, or to the 
people." Just what "powers" are thus "re- 
served," or "not delegated to the United States 
by the Constitution" are questions "respecting 



J Article V. 

* Chief-Justice Marshall examines "sovereignty" in McCulIoch v. 
Maryland, 4 Wharton, 316 (1819). 



The United States 37 

the extent of the powers actually granted" 
which are "perpetually arising, and will prob- 
ably continue to arise as long as our system 
exists." 

18. But the American people have provided 
an agency for determining for all practical pur- 
poses, the extent of these powers, — viz., the Su- 
preme Court of the United States. This is the 
final authority in America in all matters of law. 
Here we rest. 

19. It will be observed that the essential 
question is "extent of power." This is the issue. 
The Executive, the Legislature has power to do 
foolish things, and the foolish thing may be sus- 
tained by the Supreme Court as constitutional, 
because President or Congress had the power, 
under the Constitution to do it. The motives of 
Executive or Legislature are not examinable in 
any court of law. 

20. The actual working of the Government of 
the United States now for nearly a century and 
a half — however sharply that working may differ 
from theories about that Government expressed 
at its inauguration or since, can be learned, — 
if at all, — only by prolonged study of numberless 
details. Of course, the meaning of the Constitu- 



38 Essentials of American Government 

tion and the laws is variable as the minds of their 
interpreters. This variation is the open door 
admitting political parties, — schools of political 
thought, and policies of administration. What 
Hatnilton calls *'the exigencies of the Union" 
afford opportunities endless in number, for differ- 
ences of opinion as to the origin, the sources, the 
operation and the authority of the Government 
of the United States. Thus far, the Amer- 
ican people have adhered strictly to the re- 
publican form of government. That is the form 
which the Government of the United States 
guarantees to every State. It is the funda- 
mental, the essential form of government in 
America, in war, in peace, at all times and under 
all circumstances, the American people have 
adhered to that form. What that form actually 
is, to-day, is republican, — that is, — representa- 
tive. It began a representative democracy and 
doubtless will so continue "for ages to come."^ 

^ The structure, the "mechanics of government" (to use Madi- 
son's phrase), State or federal, may be learned, more or less in- 
completely, from books which enter into details of its organization. 
Such books are of encyclopsedic value, and help make our govern- 
ments, federal. State, city, county, as it were, visible; objective. 
The instructor may easily supply these details; the student may 
read them for himself. Among the treatises, on the subject, of 
highest value, is James T. Young's, The New American Government 
and Its Work, a textbook furnishing a wealth of details; so, too. 



The United States 39 

Charles A. Beard's American Government and Politics, and his accom- 
panying volume, Readings in American Government and Politics. 
Simeon E. Baldwin's, The American Judiciary is a little classic on the 
subject; either of William Macdonald's well-known volumes. Docu- 
mentary Source Book of American History 1606-1898; or Select Docu- 
ments Illustrative of the History of the United States 1776-1861, supply 
illustrations of applied Principles of American Government; of 
course the Constitution of the United States is the primary authority 
for any utterance on American Government. Story's or Willoughby's 
Commentaries, or Cooley's Principles of Constitutional Law, the 
author's Essentials of American Constitutional Law; the Federalist, 
and Bryce's American Commonwealth may be read to advantage. 
Of course the instructor will be guided by circumstances. In the 
study of American Government, Multum not Mxdta is the test of 
values. Of great value is W. B. M,unro's The Government of the 
United States, National, State and Local. 



CHAPTER V 

THE CITIZEN 

1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. ^ 

Congress shall have power "to establish a uniform 
rule of naturalization. ^ 

The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of 
servitude.^ 

2. Government in America concerns or af- 
fects three essential elements (as set forth by the 
Constitution of the United States): (1) The 
United States. (2) The States. (3) The Citi- 
zen. The comprehensive definition in the federal 
Constitution, made in 1870, includes men, women, 
and children. 

3. All citizens have civil rights, but the sev- 
eral States only confer pohtical privileges. This 
is the difference between civil and political 

^ Art. XIV. (1868). » Art I., 8: 4. 

3 Art. XV., 1 (1870). Art. XIX. 

40 



The Citizen 41 

"rights," that pohtical rights empower a person 
to participate in the pubhc business, — that is, in 
shaping, controUing government itself. So long 
as a person lives he, or she, infant or adult, has 
civil rights. A person by his or her voluntary 
act may divest himself or herself of civil rights. 
By civil rights is meant the fundamental, so- 
called "natural" rights, as set forth in Bills of 
Rights and included in every American constitu- 
tion of government. But political "rights" 
(really, privileges) are exclusively in control of 
the several States. Political "rights" are pos- 
sessed by a person who complies with the laws on 
the subject in force in the State in which he re- 
sides. Thus the "right" to vote is usually granted 
by the State law to such persons as are resident 
citizens of the age of twenty-one; who are regis- 
tered and who pay taxes; (not always required; 
in some States, payment of a poll tax). While 
citizens of each State are entitled to "all privi- 
leges and immunities of citizens in the several 
States," — "privileges and immunities" do not 
include " the right to vote." Because a person is 
a voter in one State, he is not, when removing 
to another, thereby a voter in the State to which 
he has removed. Before he can vote in that 



42 Essentials of American Government 

State, he must comply with its election laws. 
If he removes from one voting precinct to an- 
other, in a State, he must have complied with the 
election laws before he can vote in the precinct 
into which he has removed, — even if his removal 
be no more than across the street. A person is 
not compelled to vote, neither can he vote unless 
he complies strictly with the election laws of the 
State in which he would vote. 

4. The citizen therefore may be considered 
as a person having political privileges. 

5. The immense meaning of politics in Amer- 
ica, — the very large privilege of participating in 
the government, — ^federal, State, local, empha- 
sizes the citizen as a political being. The right 
to vote and to hold office is the most important 
right of the American citizen. 

6. There are two citizenships, — that of the 
United States, that of the State. Primarily the 
idea of citizenship is of local residence. Whereso- 
ever a person lives, there he is a citizen, — that is, 
he, while possessing civil rights, — is, if these 
rights are impaired, entitled to legal proceedings 
in that place (i.e., within the jurisdiction in which 
that place lies) . This practically means that he 
is entitled to his legal (civil rights) in any place 



The Citizen 43 

over which the United States has jurisdiction, or 
— if the place be within jurisdiction of a foreign 
power, he is entitled to such legal rights, and 
proceedings, as are recognized and agreed upon 
by treaty between the United States and that 
power. 

7. The principle involved here is that of pro- 
tection. A government exacts service from its 
citizens or subjects and protects them. The 
exercise of the "right to vote" is a form, in- 
stance of self -protection. When the Fifteenth 
Amendment was under discussion in Congress, 
its advocates emphasized the argument that un- 
less the negro could vote, he could not protect 
himself. Doubtless this idea is at the bottom of 
the prevalent conviction in America that the 
ballot is the chief defense of the citizen. The 
idea underlies every principle of representative 
government. 

8. There are some 55,000,000 voters In 
America of whom about one million more than 
half are males. The majority of votes cast at 
any election decides the election and authorizes 
a policy, procedure, or administration; possibly 
a law, or the repeal of one. The issues are num- 
berless. However, "majority rule" is the domi- 



44 Essentials of American Government 

nant American rule. What constitutes a major- 
ity is determined according to law. 

9. The word "citizens" in America is often 
used as meaning the "people" of America. 
Strictly speaking, the people of America include 
all its inhabitants, — residents, native-born, natu- 
ralized, and aliens. "Voting citizens" exclude 
aliens, — the foreigner residing in America, and 
all persons who are incapable of voting because 
of failure or inability to comply with the election 
laws of a State. The number of citizens who 
actually vote is usually a minority of those 
qualified to vote if they but take the trouble to 
comply with the election laws of the State in 
which they reside. Thus it often happens, in 
America, that a person is elected to office, or a 
public policy is adopted by a vote of the majority 
of the minority of possible votes. 

10. Lincoln's opinion on the admission of 
West Virginia into the Union expresses, doubt- 
less, the conviction of the American people, in 
point : 

It is a universal practice, in popular elections, to give no 
legal consideration whatever to those who do not choose 
to vote, as against the effect of the votes of those who do 
choose to vote. Hence, it is not the qualified voters, but 



The Citizen 45 

the qualified voters who choose to vote that constitutes 
the pohtical power of the State.' 

The principle here is that of representation. The 
majority of voters who vote at any election re- 
present all the people in the jurisdiction within 
which the election is held. Therefore the person 
or persons elected, the policy thus agreed upon 
at the polls, become the agents and the policy 
of all the people within the jurisdiction. The 
essential principle of "majority rule" is the 
fundamental principle of American government. 
The old maxim of law is here exemplified: 
"What we do by another, we do ourselves."^ 

' Works, II.. 286 (Century Edition), December 31, 1862. 

' The law of citizenship is examined in Chapter xii of the author's 
Essentials of American Constitutional Law. The instructor may 
profitably utilize the decisions of the Supreme Court of the United 
States, definitive of American citizenship in its various aspects, e. g.. 
Twining v. State of New Jersey, 211 U. S. 78 (1908); Slaughter- 
House Cases, 16 Wallace 35 (1872); U. S. v. Cruikshank, 92 U. S. 
542 (1872); Civil Rights Cases, 109 U. S. 3 (1883); Hawaee v. Monki- 
shi, 190 U. S. 197 (1903); Dorr v. U. S. 195 U. S. 138 (1904); U. S. 
V. Ju Toy, 198 U. S. 253 (1905). (The above bear on the essential 
elements of citizenship.) Hooe v. Jamieson, 166 U. S. 395 (1897); 
The Ohio and Mississippi R. R. Co. v. Wheeler, 1 Black 286 (1861); 
St. Louis and San Francisco R. R. Co. v. James, 161 U. S. 545 (1896); 
(these bear on cases of diverse citizenship). Paul v. Virginia, 8 Wal- 
lace 168 (1868); Blake v. McClung, 172 U. S. 239 (1898); (these 
relate to "the privileges and immunities of citizens"). Lascelles v. 
Georgia, 148 U. S. 537 (1893) (Extradition). Havenstein v. Lyn- 
haven, 100 U. S. 483 (1879); (Aliens). U. S. v. Wong Kim Ark. 169 
U. S. 649 (1898) ; Downes v. Bidwell, 182 U. S. 244 (1901). (XIX th 



46 Essentials of American Government 

Amendment; Citizenship in the U. S.) These cases are given in 
McClain's A Selection of Cases on Constitutional Law. See also 
(Index, same volume), on "Aliens," " Birth by Citizenship," "Natur- 
alization." See also under "Nationality" and "Naturalization" in 
A. S. Hershey's, The Essentials of International Public Law. The 
subject is also discussed in the other volumes cited in the Selected 
"Bibliography," in the present work. 

Of great value is the Federal CitizensJiip Textbook, a Course of In- 
struction for Use in the Public Schools by the Candidate for Citizenship. 
Part III, by Raymond F. Crist, U. S. Department of Labor, Bureau 
of Naturalization, Washington, Government Printing OflBce, 1921, 
104 pp. 



CHAPTER VI 

CITIES 

1. Cities in America are political subdivisions 
of a State and therefore possess whatever or- 
ganization, powers, and jurisdiction the State 
grants. These grants, — taking the form of 
charters, acts of incorporation, laws of whatever 
kind, — are strictly construed. No American 
city is free, sovereign, or independent. 

2. A city is a part of a whole, — the State. Free 
cities, like the members of the Hanseatic League, 
or distinct urban communities, like Carthage, 
Rome, Athens, or Thebes of old, are unknown to 
American government. Doubtless civil govern- 
ment grew apace, if it did not originate in cities. 
Our words ''politics" {TroXtSy a city), "citizen" 
disclose chapters of the history of government. 
Indeed, our words "civics," "civil," and others 
on the same root {civitas, the state) tell the same 
story. Early governments were governments of 
city-states. 

47 



48 Essentials of American Government 

3. In America, to-day, more than half the 
population dwells in cities, and the constant in- 
flux from the country tends to increase the urban 
proportion of our people. City government, 
therefore, in America, has become the govern- 
ment under which the greater part of our people 
live. 

4. The Constitution of the United States was 
made for States, — not for cities, or territories, or 
"outlying possessions." Cities are therefore a 
part of State government. Territories and out- 
lying possessions of the United States are sub- 
ject to the exclusive control of Congress.^ 

5. Thus New York City is governed by the 
people of the State of New York acting through 
the constitution of that State. Practically, this 
means government of the city by the Legislature 
of the State. 

6. Manila is governed by the people of the 
United States acting through the Constitution 
of the United States. Practically this means 
government of Manila by Congress. 

7. When the first State constitutions and the 
Constitution of the United States were made, the 
urban population of the country was so small as 

^ Art. IV., Section 2. Downes v. Bidwell, 182 U. S. 244 (1901), 



Cities 49 

to be almost negligible, — less than three per 
cent of the entire population. By 1890 (a 
century later), the urban population aj)proxi- 
mated one fourth of the population, or more than 
eight times the number at the time the federal 
constitution was made. Since 1890, this popula- 
tion has more than doubled. The problem of city 
government in America is now, and henceforth 
will continue to be, as very large, if not the 
largest civil problem before our people. 

8. The problem, stated in some of its bare 
outlines is how shall the most complex popula- 
tion, having diverse social structure, hetero- 
geneous interests, unlimited possibilities of all 
kinds, extremes of poverty and wealth, unlimited 
needs as to public health, education, safety, — all 
involving taxation, expenditures, — questions of 
public works, — heating, lighting, transportation, 
— in brief, the large problem of government for 
congested populations, — be organized and ad- 
ministered? 

9. The very conditions of city life test all the 
powers of government. All these urban condi- 
tions duly considered, — the one question is, 
"What government is best suited to the city .^ " 

10. In seeking an answer to this question, 



50 Essentials of American Government 

the main end and purpose of all government re- 
mains : to establish justice. But no two cities are 
precisely alike, though the dominant conditions 
of several cities may be quite the same. This 
presumption, which lies at the bottom of laws 
which classify cities within a State, proceeds on 
the theory that cities of equal population shall be 
governed alike. The basis of government here 
is persons, not things; population, — not wealth, 
area, race, language or occupation. 

11. In the present stage of the development 
of ideas of government, we have but one unit of 
measure: population. Economic, ethical, racial 
conditions yield to numbers of persons as the 
basis for government. This means that justice 
can be best (possibly, in no other way) estab- 
lished than by basing government on population. 
The theory is that an equal population will have 
practical equality (if not identity) as to eco- 
nomics, ethics, manufactures, education, and 
other elements which, in the aggregate, dominate 
city life. In other words the only basis of govern- 
ment adopted for cities is the basis adopted for 
States and for the United States: population. 

12. Given this basis, the question is. What 
population .f^ That of the city itself or some 



Cities 51 

other,— e.^., that of the entire State. If of the 
city itself, and not of the State as a whole, then 
the city shall have "self-determination," or 
" home-rule." This means that the people of the 
city shall in large measure be independent of the 
remaining people of the State, particularly in 
organizing the form of their government. While 
republican (i.e., representative in form) it shall 
vary from the exact form of the State govern- 
ment. State governments, in America, are 
essentially of the (so-called) federal form,--i.e., 
they consist of three departments,— the Execu- 
tive, the Legislature, and the Judiciary. The 
State, the national executive is a single person: 
the State, the national Legislature is bi-cameral. 
13. City government of the federal type, — 
famiUar in this country, provides for a mayor, a 
select and a common council (a little Congress), 
and courts of law. But is the general law of the 
State,— which consists of sparsely settled regions 
(rural regions) and congested populations (cit- 
ies) ,— sufficient to establish justice, the great end 
of all government ? A fundamental and very prac- 
tical question is here involved. Shall the people 
of a State be governed by general or by special 
laws? Special legislation is, generally speaking, 



52 Essentials of American Government 

class legislation, favoring some particular inter- 
est. It therefore does not establish justice. 

14. General legislation misses the needs of 
some communities. Thus the needs of a great 
city are different from those of a farming com- 
munity. This difficulty in legislation was 
thought for many years to be overcome if cities 
were classified according to population. ' But the 
multiplication of classes of cities amounted 
practically to special legislation. The impossi- 
bility of solving the problem by mere classifica- 
tion of cities soon was disclosed, — ^for so rapid 
was the increase in number of cities, and of their 
populations, — so various their several needs, the 
State Legislature was unable to meet these needs 
by appropriate legislation. This condition be- 
came serious in States in which great cities 
sprang up, incident to manufacturing, as in 
New York, Pennsylvania, Ohio, Illinois, and 
Missouri. 

15. In 1875 Missouri inaugurated the "home- 
rule charter" system of city government, giving 
every city having a population over 100,000 the 
right to formulate, adopt, and administer its own 

' Exemplified by the classification of Ohio cities into two classes 
by the Constitution of 1851;— Municipal Code of 1852; Act of 1868. 



Cities 53 

charter.' It is now nearly half a century since 
this innovation. Upwards of one hundred and 
seventy cities in more than a dozen States are 
to-day organized under some form of "home- 
rule." Varying as these forms do, they all agree 
in complying with the principle of representa- 
tion fundamental in American government. 

16. The chief argument in favor of "home- 
rule" for cities is the compliance of the form with 
the principle of representation. The people of 
the city, — so runs this argument, — know best 
their own needs. The State Legislature cannot, 
or does not, or will not know these needs so 
perfectly. The chief objection to the system is 
to its decentralizing tendency and effects, — that 
the people of the city make these interests para- 
mount to those of the State, thus making the 
part even greater than the whole. Opponents of 
"home-rule" for cities assert that all essential 
interests of the city are essential interests of the 
State, and therefore should be considered in no 
wise different from general State interests. If 
the claims of "home-rule" (so its opponents as- 
sert) are fully acknowledged, then every com- 
munity within the State will be an independent 

• See Constitution of Missouri, 1875, Art. IX., Sec. 16. 



54 Essentials of American Government 

community, and the State will be hopelessly split 
up into innumerable parts and factions. 

17. In brief, opponents of the system see in 
"home-rule'* for cities the disintegration of the 
State. The rejoinder for "home-rule" for cities 
is that the system cuts down and even eliminates 
gross abuses in government, — especially in the 
matter of taxation; in the efficiency of appropria- 
tions; in public order, health, elections, schools, 
methods of transportation, — indeed, in every 
branch and interest of city government. 

18. The principal points of difference of 
opinion as to the system are: 

1 . Taxation 

The power to tax is the power to destroy. The 
State should not delegate this power to any of its 
subdivisions. 

2. Police Power 

The police power of the State is an aspect, an 
element of its sovereignty. The first care of a 
State is for the welfare of its people: their 
health, safety, and morals. This police power 
should not be surrendered to any subdivisions 
of the State, 



Cities 55 

3. Election Laws 

The election laws of a State should be uniform. 
No subdivision of a State should be allowed to 
make election laws differing from those enacted 
by the Legislature for the people of the State as 
a whole. 

4. Indebtedness 

No city should be allowed to exceed, in bor- 
rowing power, an amount, or percentage of 
valuation, fixed by the Legislature. Otherwise 
financial credit will vanish and bankruptcy be 
the fate of the community. 

5. Charities and Schools 

Education and philanthropy are the care 
(function) of the whole State and are never 
merely local interests. Uniformity in education 
is necessary, as it is just, for all the people of the 
State. Indeed, the weight of argument against 
*' home-rule" for cities in a State rests on the 
justice and equity of uniformity for all com- 
munities within the State. 

19. To these (and other) objections to the 
system there is essentially one reply: the in- 



56 Essentials of American Government 

adequacy of general laws (general charters) to 
the special wants of a city. The answer recog- 
nizes that "home-rule" for a city makes it a 
political unit separate from the State. Yet this 
divorce of State and municipal politics is claimed 
by defenders of "home-rule" for cities as a dis- 
tinct gain for the city, in that its people have the 
opportunity by its "home-rule" charter to free 
themselves from control by domination of a 
political party dominant in the State, and thus 
to control their own urban affairs. This separa- 
tion of State and city issues, making the city 
independent of the State, it is claimed by sup- 
porters of the "home-rule" system operates to 
the advantage of the people of the city. Prima- 
rily, it concentrates their attention on their own 
urban interests, and results in greater efficiency 
in every branch of municipal government. 

20. This all means, — if it means anything, — 
that "home-rule" for cities works out, as a sys- 
tem, more perfectly than any other known, the 
fundamental principle of American government, 
— representation. 

21. In cities which have "home-rule" it is 
claimed that: (1) The voters, — the electorate, 
take a livelier interest in all public questions 



Cities 57 

affecting the city's welfare; as proved by the 
larger percentage of persons voting than in cities 
not having "home rule." 

The voters inform themselves as to these 
questions, whence a marked discrimination in 
choosing public officials. 

(2) That the "best men,'* — the best qualified 
candidates are chosen to office irrespective of 
party affiliation. 

(3) That economy and efficiency mark every 
department of city government, — notably in 
education, public safety, public health, parks, 
streets, public works (water, gas, light), urban 
traffic and transportation, — in brief, in all ex- 
penditures of money. Such economy and effi- 
ciency bring reduction in taxes, and "clean 
politics." 

22. All this means (if true) that "home-rule" 
for American cities is a more complete applica- 
tion of the representative principle in govern- 
ment than has hitherto been known. If more 
than one half the population of the United States 
dwells in cities, then the significance of "home- 
rule" for them in America is apparent. 

23. Authority to the people of a city to have 
"home-rule" comes from all the people of the 



58 Essentials of American Government 

State through their representatives, the State 
Legislature. By this authority, the people of the 
city at an election, or town meeting appoint a 
committee to draw up a plan for the city's 
government, usually called a charter. This 
charter is submitted to the electors in the city 
(a referendum) and, if approved by a majority of 
them, becomes law. This charter may have been 
prepared by a special committee; by a non- 
resident; may be copied from some other city. 
Whatever the origin, it becomes the city's 
charter by majority vote of its electors. 

The charter thus adopted has for its primary 
purpose the establishing of justice. This end is 
usually expressed as the securing of economy and 
efficiency. 

24. To this end, the administration of city 
affairs is committed to individuals who by the 
charter are responsible for results in their respec- 
tive departments. The organization and pro- 
cedure is like that of a business concern. The 
city is considered as a business to be conducted 
by experts. The commissioners elected on a 
non-partisan ballot may divide the work among 
themselves, or employ a general manager who 
shall be responsible for economy and efficiency 



Cities 59 

in every department. The manager may be paid 
a salary. Usually the public business is divided 
among the commissioners, — thus one commis- 
sioner has charge of Public Safety; another of 
Streets and Highways; another of Public Health. 
The schools are usually left in charge of a School 
Board as organized and empowered by the school 
laws of the State. As in the government of 
American cities, there has been waste and ineflS- 
ciency in departments whose work involves large 
contracts, — it is particularly in these depart- 
ments that *' home-rule" and ''charters" seek 
to effect results. 

25. Whatever form of commission govern- 
ment be adopted by a city, — that form is an 
application of the principle of representation. 
The primary authority is the people of the State. 
This means that a commission government, 
whatever its form, is a form of government 
authorized by the sovereign power in the State. 
The authority thus authorized is delegated by that 
sovereign. Like all grants or charters author- 
ized by a Legislature (or, indeed by any power, — 
as the Executive, or the Judiciary) the city 
charter is strictly construed. In case of litiga- 
tion arising under it, the court or courts of law 



6o Essentials of American Government 

having jurisdiction interpret its meaning. The 
principle here is set forth by the Supreme Court 
of the United States: **It is emphatically the 
province and duty of the judicial department to 
say what the law is."^ The charter, or com- 
mission form of government is the law of the 
city having '* home-rule." 

26. Therefore, whether the law of the city 
be its special charter, or the general municipal 
law of the State, the people of the city live under 
the "republican (representative) form" which 
characterizes American government, State and 
federal.^ 

I Marshall in Marbury v. Madison, 1 Cranch 137 (1803). 

* The literature on the government of cities is very extensive and 
detailed. W. B. Munro's The Government of American Cities describes 
"the machinery of that government." Quite all available material 
worth citing is utilized, and cited. Instructors and students Avill find 
in this work adequate discussion of all the essential elements of city 
government. For comparative study, consult the same author's 
The Government of European Cities. See also H. Deming's Govern' 
ment of American Cities. 



CHAPTER VII 

THE SUPREME LAW 

{Written and Unwritten) 

1. The supreme law of the land is the Con- 
stitution of the United States and all acts of 
Congress in force, made by its authority. ' No 
other people has a like law. Ours is written. 
There is also an unwritten supreme law, con- 
sisting of customary law, and (for lack or a 
better term) public opinion. 

2. The Supreme Law has for its primary pur- 
pose the establishing of justice.^ This estab- 
lished, all the remaining purposes of government 
follow: to insure domestic tranquillity; to pro- 
vide for the common defense; to promote the 
general welfare, and to secure the blessings of 
liberty to ourselves and our posterity.^ No 
similar statement of the purpose of government 
can be found before the Constitution of the 
United States was made. This Constitution was 

» Article VI., 1. » Preamble. J Id. 

6l 



62 Essentials of American Government 

ordained and established by the people of the 
United States. 

3. Probably no words are more commonly 
used, in America, whenever its laws or its govern- 
ment is considered, than "constitution" and 
"constitutional." No other people uses these 
words in like manner. 

4. The Constitution is a short document 
(less than 6500 words)' and has now, for more 
than a century, been a model whenever a people 
have made any modification of their old govern- 
ment or organized a new one. 

5 . The Constitution is a delegation of powers. 
The delegating authority is the people of the 
United States.^ The people by the Constitution 
not only delegate powers but also determine by 
what method or procedure these delegated pow- 
ers shall be exercised. 

6. The Supreme Law thus expresses the will 
of the people as to the powers which shall or may 
be exercised and also in what manner or method 
their agents shall exercise them. Thus the 
Constitution consists of statements of power 
delegated, and of parliamentary procedure. 

I The last constitution of Louisiana, the ninth (1921), has more 
than 50,000 words. * Preamble. 



The Supreme Law 63 

7. Government is control. Control is reason- 
able, — that is, according to law. What is law? 
It is not self-executory. Therefore the idea or 
concept of government involves the making of 
the law; the interpretation of the law, and its 
execution. It also involves its administration. 

Our Supreme Law is, historically, a piece of 
eighteenth century work, modified and amended 
later, to meet the exigencies of the American 
people. ' 

8. In so far as legislative powers have been 
granted by the people of the United States, 
they are vested in a Congress which consists of a 
Senate and a House of Representatives.^ 

9. The Constitution prescribes the composi- 
tion of the Senate and of the House: how mem- 
bers of each shall be chosen; their respective 
qualifications as to age and residence; the term 
of office, and the method of removal from office. 
Also distinctive powers of each branch of Con- 
gress. ^ It prescribes the organization of each 
branch and the procedure in legislation. 

10. Legislation is the act of the Congress, — 



' See discussion of this point in the autior's Constitutional History 
of the United States. 

» Art. I., 1. J Art. I. 



64 Essentials of American Government 

not of one branch of it, — unless so specified, — as 
in the making of treaties,'' in which the Senate 
alone participates. 

11. The powers of the Congress are stated, 
somewhat specifically, but with the somewhat 
sweeping grant of power to make all laws which 
shall be necessary and proper for carrying its 
powers into execution, and all other powers 
vested by the Constitution in the Government 
of the United States or any department of this 
government.^ 

12. This seemingly sweeping delegation of 
powers to Congress by the people is limited by 
explicit words at the opening of the legislative 
article which says, " All legislative powers herein 
granted shall be vested in a Congress,'* and 
again, in the Tenth Amendment, "The powers 
not delegated to the United States by the Con- 
stitution nor prohibited by it to the States are 
reserved to the States respectively or to the 
people." The words "herein granted" and "are 
reserved" are words of limitation. This means 
that the Congress is not sovereign. 

5. Having authorized the Congress to make 

' It may be questioned whether "treaty- making" is "legislation." 
"Art. 1,8:18. 



The Supreme Law 65 

all laws necessary and proper to carry into exe- 
cution the powers vested in that body, the 
people delegated executive power, vesting it in a 
President of the United States, specifying the 
method of his election; his term of office; some 
of his powers; his qualifications as to age and 
residence, requiring him, under oath or affirma- 
tion solemnly to promise faithfully to execute 
the office to which he is chosen. The people 
further prescribed the procedure of impeach- 
ment of the President. ^ 

14. The supreme duty of the President is to 
execute the office he holds, which duty consists 
in his preserving, protecting, and defending, to 
the best of his ability, the Constitution of the 
United States. 

15. To the end that justice be established, 
the exact meaning of laws must be known. 
This meaning affects the people, collectively 
and individually. They therefore delegated 
judicial power, vesting it "in one Supreme Court, 
and in such inferior courts as the Congress may 
from time to time ordain and establish."^ No 
authority has been given by the people of the 
United States by which judicial power is vested 

> Art. II. » Art. III. 

5 



66 Essentials of American Government 

in courts of a State save and except that the 
judges in every State shall be bound by the Con- 
stitution of the United States, anything in the 
constitution or laws of any State to the con- 
trary notwithstanding: a provision which vests 
State judges with power to interpret the Supreme 
Law of the land. 

16. In vesting the judicial power of the 
United States in one Supreme Court and in 
inferior courts that vesting is not elaborated into 
details. The nature of cases or "causes" (to use 
a legal term) and the parties to them are de- 
scribed and a distinction made between the 
original and the appellate jurisdiction of the 
Supreme Court. The place of criminal trials, 
their procedure, and provision for change of 
venue are provided for. An amendment forbids 
the judicial power of the United States to extend 
to any suit in law or equity commenced or 
prosecuted against one of the United States by 
citizens of another State, or by citizens or sub- 
jects of any foreign State. This amendment 
adopted nine years after the inauguration of the 
constitution was made in recognition of the 
sovereignty of a State. 

17. Chief -Justice Marshall declared the prin- 



The Supreme Law 67 

ciple that "it Is emphatically the province and 
duty of the judicial department to say what the 
law is." This principle applies to any court of 
law. And he says further: 

If a law be in opposition to the Constitution; if both the 
law and the Constitution apply to a particular case, so 
that the court must either decide the case conformably 
to the law disregarding the Constitution, or conformably 
to the Constitution, disregarding the law, the court must 
determine which of these conflicting rules governs the 
case. This is of the very essence of judicial duty.'' 

18. The Constitution is ordained and estab- 
lished by the people of the United States as "the 
supreme law of the land." The conclusion is 
obvious : every law made in America in harmony 
with the Constitution stands; any other legis- 
lation falls. 

19. But the Supreme Law of the land is con- 
cerned with other interests than the congres- 
sional, the presidential, and the judicial. Or, 
doubtless the truth may be stated in other words, 
as that the Constitution concerns the United 
States, the States severally, and the citizen. The 
people of the United States, modeling their Con- 
stitution on those of the existing States,"* set 

' Marbury v. Madison, 1 Cranch 137 (1803). 

' Also utilizing ideas (provisions) in the Articles of Confederation, 



68 Essentials of American Government 

forth the relations of the States to the United 
States; the rights, privileges, and immunities of 
citizens, and the coordination of the federal, 
Legislative, Executive, and Judiciary. An ex- 
amination of the Constitution reveals in every 
article this fine coordination of parts, — this 
unity in government. By this Supreme Law 
the people of the United States ordained and 
established a national act, — ^providing for "an 
indestructible Union of indestructible States."' 



in early Charters and in English laws and judicial proceedings. See 
the Chapter on "The Sources and Authorship of the Constitution," 
in the author's Constitutional History of the United States. 

^ The Constitution is the subject of many histories, treatises, 
commentaries, and judicial decisions. 

George Bancroft, History of the Formation of the Constitution of the 
United States of America. 2 vols. 

George Ticknor Curtis, Constitutional History of the United States. 

2 vols. 

Francis N. Thorpe, Constitutional History of the United States. 

3 vols. 

Joseph Story, Commentaries on the Constitution of the United States. 
2 vols. 

W. W. Willoughby, The Constitutional Law of the United States. 
2 vols. 

Thomas M. Cooley, Principles of Constitutional Law. 

Cooley, Constitutional Limitations. 

Francis N. Thorpe, Essentials of American Constitutional Law. 

Hamilton, Madison, Jay, the Federalist (Ford, or Lodge Edition). 

James Bryce, The American Commonwealth. 2 vols. 

Bibliography of the Constitution, by Paul Leicester Ford. 

Facsimile of the Constitution in H. L. Carson's History of the Cele- 
bration of the One Hundredth Anniversary of the Promulgation of the 
Constitution of the United States. Vol. I. 



The Supreme Law 69 

Decisions of the American Courts on the meaning of the Constitu- 
tion are the decisions in cases involving the Constitution an Act of 
Congress, or a treaty of the United States. No entire collection of 
such decisions exists. See J. P. Cotton's (Editor) Constitutional 
Decisions of John Marshall, 2 vols., and the Re-ports of the Supreme 
Court of the United States (later than Marshall's decisions). Recent 
decisions of this Court, in cases involving the Constitution are dis- 
cussed by T. R. Powell, in The American Political Science Review. 



CHAPTER VIII 

THE LEGISLATIVE 

(State and Federal) 

1. The American people have vested the 
power to make their laws in the Congress and in 
the State Legislatures of which at present there 
are forty-eight. These forty-nine Legislatures 
are agents of the people: the Congress, of all the 
people of the United States; the State Legisla- 
tures, of the people subdivided into States. All 
these Legislatures have much in common. Each 
consists of two branches, or Houses, — an Upper 
and a Lower, — a Senate and a House of Repre- 
sentatives, — the Senate, the less numerous body. 
The House, or lower branch consists of represen- 
tatives of the people elected in small districts; 
the Senate, of representatives elected in larger; 
in the case of the Congress, — these larger dis- 
tricts are States; in the case of the State Legis- 
latures, these larger districts are of one or more 
counties. 

70 



The Legislative 71 

2. Thus for the election of members of State 
Legislatures and that of the lower branch of 
Congress, the country is divided into districts, — 
as (in a State), Senatorial Districts, Assembly 
{i. e., H. R.) Districts, Congressional Districts. 
State Districts (Senatorial and Assembly) are 
defined by the State constitution, or by act of 
the State Legislature, — usually by the latter, — as 
representative (Senators, Assemblymen) are ap- 
portioned to population, and this changes. De- 
spite possible changes, — which in theory at least 
may best be considered from time to time by the 
Legislature itself, rather than be ignored as by 
an inflexible constitution, the supreme State 
law, — (the State constitution) may provide (as 
does Mississippi by its constitution of 1890) 
that the number of Senators and that of repre- 
sentatives shall be fixed, — that certain counties, 
(naming them) shall elect a number of Senators 
and Representatives; that the apportionment 
(districting of the State) shall be made by the 
Legislature every ten years, — that new coun- 
ties may be created, but that the State shall be 
divided into areas, permanently and within each 
area the number of Senators and of Representa- 
tives shall be fixed. 



72 Essentials of American Government 

3. Mississippi is thus divided into three parts, 
—the number of its Representatives never to be less 
than one hundred nor more than one hundred and 
thirty -three; that of its Senators, never less than 
thirty nor more than forty-five. The people of the 
State of New York, by their constitution of 1894 
vest their legislative power in a Senate and Assem- 
bly ; the Senate consisting of fifty Senators, — the 
Assembly of one hundred and fifty Representa- 
tives. The constitution districts the State for 
both Senate and Assembly. Provision is made 
for additional Senators. But on and after 1895, 
decennially, the Legislature districts the State. 
Theoretically,' the number of senatorial dis- 
tricts is obtained by dividing the whole number 
of inhabitants of the State, excluding aliens, by 
fifty; the number of Assembly districts, by divid- 
ing that number by 150; but county and town 
(i.e., township) lines are to be respected; nor are 
city blocks to be divided. 

4. The problem of representation is very 
different in a State like Mississippi, the majority 
of whose population is rural, from that in a State 
like New York, the majority of whose population 

* Provision is made for creation of new counties; for additional 
Senators in special cases. See Art. III., 4. 



The Legislative 73 

is urban. In New York nearly one half the popu- 
lation resides in one city, New York. Shall the 
city govern the State, or the State, the city.? 

5. The problem of districting a State for 
Congressmen, or State Senators and Representa- 
tives is always difficult and (it may be said) has 
never been perfectly solved. Districting is never 
more than an approximation to a solution of the 
problem. When the time for legislative district- 
ing comes, the political party controlling the vote 
of the Legislature may and often does, district 
the State in its own interest,' so apportioning 
representation that the electors will return re- 
presentatives of their own party, — even though 
in the aggregate, an honest vote would return 
persons of another party. This kind of district- 
ing, — known in America as "Gerrymandering," 
— the people of the State seek to prevent by pro- 
visions in its constitution prescribing that elec- 
tion districts shall consist of "compact and 
contiguous territory," — that county and township 
boundary lines shall be respected, and that (as is 
the principle in Mississippi) specified subdivi- 
sions, or areas, of the State, shall never have more 
or less than fixed numbers of Representatives. 

* As in Wisconsin, 1891. 



74 Essentials of American Government 

6. In States having large cities, — New York, 
Illinois, Pennsylvania, Ohio, Missouri, and 
others, — the people of the State, by its constitu- 
tion, attempt to prevent domination by cities 
by so apportioning representation. 

7. It will be observed, here, that the funda- 
mental principle of American government is 
involved. Ours is a representative democracy, — 
a republican form of government, — guaranteed 
by the United States to each State, and ever 
sought by the people of each State. Primarily it 
is thus sought in the districting of the State for 
legislative purposes.^ 

8. The equity of apportionment is supposed 
to be realized when equal numbers of people are 
thus grouped. In actual government such an 
apportionment is never realized. For instance, 
each State has equal suffrage (representa- 
tion) in the Senate of the United States, — an 
equality of public corporations; pares inter 

' The plan of districting a State is always set forth by its constitu- 
tion; special study may be made of the State constitution of the 
State in which the student resides. Consult, American Charters, 
Constitutions and Organic Laws in which all State constitutions down 
to 1909 are given. " The equal vote allowed each State is at once a 
constitutional recognition of the portion of sovereignty remaining in 
the individual States, and an instrument for preserving that residuary 
sovereignty." The Federalist, No. LXII. (Hamilton or Madison; 
Lodge Edition). 



The Legislative 75 

pareSy^ — not of population, areas, wealth, indus- 
try, or natural resources. 

9. In States in which each county is a sena- 
torial district, there is, in many respects, a 
similarity to the representation of a State in the 
Congress, — as for many purposes, a county is a 
public corporation, and the counties of a State 
are pares inter pares. So too, one Assembly 
District equals another, each having one vote in 
the Legislature, but an Assembly District may or 
may not be a public corporation; and rarely, if 
ever, are the wealth, resources, industry, natural 
resources of two Assembly Districts equal. 

10. The basis of representation, in American 
government, is persons. Yet, in the administra- 
tion of government, we shall see, if we consider 
taxation and commerce, the burden of sup- 
port, while falling primarily on persons (as 
in time of war), falls on wealth, industry, and 
resources. 

11. Apparently, then, representation appor- 
tioned to population is considered as the most 
equitable basis of government, irrespective of 
wealth, industries, natural resources, land areas, 
or other elements. 

' One equal to another; literally, "equals among equals." 



76 Essentials of American Government 

Persons are the basis of Anierican government. 
Legislatures represent persons, not things.' 

12. Members of the Legislature are chosen as 
agents of the people to make laws. Hence ac- 
tivities foreign to the duty of lawmaker are 
forbidden him. He is a lawmaker only while 
serving his term. Hence the limitation expires 
when he ceases to be a lawmaker. He so ceases 
by expiration of his term; by resignation; by 
expulsion from Senate or House by its action; 
(and usually) by removal from the District in 
which he was elected, — thereby ceasing to be its 
representative. 

13. State constitutions and laws provide 
against a person's holding more than one office 
at a time, usually by declaring what offices are 
incompatible. The inhibition is not because a 
person may not at the same time represent the 
people in several functions; — say legislative, 
judicial, and administrative, but that he cannot 
so represent them without confusing one func- 
tion with another, — or neglecting one to the 
neglect of the people's interests. The principle 

I This fundamental distinguishes the growth of government and 
ideas about government in all ages. Aristotle's, "Man by nature 
is a political being," may be compared with Jefferson's, "All men are 
created equal," and Louis XIV's, "I am the State." 



The Legislative 77 

here involved is set forth in the Constitution of 
Massachusetts : 

In the government of this Commonwealth, the legisla- 
tive department shall never exercise the executive and 
judicial powers, or either of them; the executive shall 
never exercise the legislative and judicial powers, or 
either of them; the judicial shall never exercise the legis- 
lative and executive powers, or either of them : to the end 
it may be a government of laws and not of men.* 

14. In the first State governments, prior to 
the making of the national Constitution (1787), 
the legislatures were not limited. Limitations 
were placed on governors. The people delegated 
to their agents in State Legislatures power to 
make laws. This delegated power was abused. 
After half a century of experience in government, 
the people began curtailing the power of their 
State legislators by forbidding special legislation. 
The principle sought to be applied was that of 
general, — that is, equitable legislation. All laws 
made by State legislators should be of general 
application throughout the State, affecting all 
its people alike. The purpose of a law should 
be clearly stated in its title.^ 

' 1780, Pr. I., Art I., XXX. 

' An illustration: in 180S, Aaron Burr, and others, secured passage 
of a law authorizing a company in New York City to establish water- 
works, "and for other purposes." The company organized a bank. 



78 Essentials of American Government 

15. Turning to the State constitutions in 
force to-day, elaborate and specific provisions 
will be found forbidding special legislation. This 
does not signify that special acts should not be 
performed, — e.g., changing the name of a street, 
— but that, in the opinion of the people, that 
kind of an act should not be done by the Legisla- 
ture. It is quite possible that a State Legisla- 
ture has power to enact a law providing that all 
streets in the State running north and south 
shall be numbered, but the Legislature of Penn- 
sylvania is forbidden by its constitution to 
regulate by "any local or special law" "the 
affairs of counties, cities, townships, wards, 
boroughs or school districts."^ 

16. The obvious reason for prohibiting spe- 
cial legislation is that the result desired, — if de- 
sired at all, — may best be secured through some 
other agency than the Legislature. It means 
that the local government can best attend to 
strictly local affairs, and that when a Legislature 
meddles with such affairs, it discriminates, — and 
discrimination in legislation, is, in theory at least, 
always inequitable. The principle here is: "the 

^ 1873, Art. III., Sec. 7. Similar provisions in other State con- 
stitutions. 



The Legislative 79 

whole shall legislate for the whole"; or, to use 
Chief -Justice Marshall's repeated truism, — "the 
whole is greater than the part."^ 

17. Another illustration of forbidden special 
legislation is as to the granting of divorces. The 
evil of such legislative grants becomes intoler- 
able. The granting of divorces rests justly 
with courts of law which (in the language of 
Webster) "hear before they condemn; proceed 
upon inquiry, and render judgment only after 
trial."^ 

18. The long, and increasing list of subjects 
concerning which State Legislatures are for- 
bidden to pass laws marks the growth of strictly 
local government, and the increasing knowledge 
among the people of the best method, or agency, 
by which, or through which to establish justice. 
A court of law, not a legislature, is an agency best 
representative of the will of the people to estab- 
lish justice in divorce cases. This does not mean 
that a court of law always equals the will of the 
people. Representation is always an approxima- 

' This axiom Marshall makes fundamental in his constitutional 
decisions. It is brought out repeatedly in Beveridge's Life of Mar- 
shall. See also the author's "Hamilton's Ideas in Marshall's Deci- 
sions," Boston University Latv Review, April, 1921. 

' In the Dartmouth College Case, 1819. 



8o Essentials of American Government 

tion. The agent is not the principal, though he 
may, possibly, fully represent his principal. 

19. American government, in its every as- 
pect, is a device designed to establish justice. 
Every human institution is imperfect. Does the 
republican form of government more completely 
establish justice than any other form? This 
question brings into comparison all forms of 
government among men. It will be observed 
that the people of the United States, — and the 
people of the several States are included, — or- 
dained and established "a more perfect" not a 
perfect, or most perfect Union. The attempt, the 
fact, is significant. 

20. In vesting the law-making power in a 
legislature, the people, whether of the United 
States, or of a State, provide for the election of 
the lawmaker. The responsibility rests prima- 
rily with the people who elect. To what extent 
the lawmaker must comply with the ideas of the 
people who elect him is by no means agreed 
upon.^ Shall a member of Congress, or of the 
State Legislature resign, if he cannot support, in 



' Thomas H. Benton, as an anti-slavery man, did not represent the 
ideas of his constituents of Missouri in 1850; nor John B. Henderson, 
1867-69, in his introduction and defense of the Fifteenth Amendment. 



The Legislative 8i 

legislation, the ideas of the people (State or Dis- 
trict) who elected him? Shall the judge on the 
bench decide according to popular ideas of the 
issue before him, or is he to decide as an expert, 
elected by the people as a person whose judgment 
shall be accepted as authoritative? 

21. It is a remark of Webster's that 

the true principle of a free and popular government would 
seem to be, so as to construct it as to give to all, or at 
least to a very great majority, an interest in its preserva- 
tion; to found it, as other things are founded, on men's 
interests. ^ 

Another remark of Webster's is that, "the people 
must be protected against themselves." This 
raises a primary question whether the ideas of 
the people may ever be wrong. Or, expressed in 
another form, Do the people, when electing their 
agent, be that person lawmaker, executive, judge 
or ministerial agent (an administrative official by 
direct or indirect election), empower that agent 
to act for them as he judges best, thus, as it 
were, making him, during his official life, a 
quasi-sovereign, standing, as it were, "in their 
shoes"? 

' Remarks in the Massachusetts Convention of 1820-21, Journal, 
311 (December 15, 1820). The same thought is expressed by 
Hamilton, in the Federalist, No. XVI. (Lodge Edition, 95.) 
6 



82 Essentials of American Government 

%%. The question is debatable.^ It reduces 
itself to this : Shall the dominant opinion of the 
people at any time regulate and control the 
thought and action of the agents of the people, — 
members of the Congress and of the State Legis- 
latures; the President; governors; judges, State 
and federal, — and administrative officials? If 
not, — ^when shall public opinion (national or 
State, or District) be ignored by the agent of the 
people? 

23. Legislation, whether by the Congress, or 
by a State Legislature, is supposed to be required 
by the exigencies of the nation or of the State. 
All legislation in America is made by the ma- 
jority in the legislature, and that majority 
usually represents the will of a political party. 
The people elect their agent by majority vote. 
Usually he is a partisan. Practical application 
of the principle of representation means therefore 
supremacy of a political party. Non-partisan 
legislation is, — at least in America, — ideal legis- 
lation. It is sometimes enacted even when a 
political party is dominant in a legislature. 

^ This question involves that of the initiative, the referendum, and 
the recall. On this subject consult Beard and Schultz, Documents on 
the State-Wide Initiative, Referendum and Recall; also Barnett, The 
Operation of the Initiative, Referendum and Recall in Oregon. 



The Legislative 83 

14. But what of the defeated minority? 
Should it be officially represented? The prin- 
ciple here involved is thus discussed in the 
Federalisf : 

It is of great importance in a republic not only to 
guard the society against the oppression of its rulers, but 
to guard one part of the society against the injustice of 
the other part. Different interests necessarily exist in 
different classes of citizens. If a majority be united by a 
common interest, the rights of the minority will be inse- 
cure. There are but two methods of providing against 
this evil: the one by creating a will in the community 
independent of the majority — that is of the society 
itself; the other, by comprehending in the society so 
many separate descriptions of citizens as will render an 
unjust combination of a majority of the whole very im- 
probable, if not impracticable. The first method prevails 
in all governments possessing an hereditary or self- 
appointed authority. This, at best, is but a precarious 
security; because a power independent of the society may 
as well espouse the unjust views of the major, as the 
rightful interests of the minor party, and may possibly 
be turned against both parties. The second method will 
be (is) exemplified in the federal republic of the United 
States. Whilst all authority in it will be derived from 
and dependent on the society, the society itself will be 
broken up into so many parts, interests, and classes of 
citizens, that the rights of individuals, or of the minority, 
will be in little danger from interested combinations of 
the majority. In a free government the security of civil 
rights must be the same as that for religious rights. It 

' No. LI. (Hamilton or Madison). 



84 Essentials of American Government 

consists in the one case in the multiphcity of interests, 
and in the other in the multiplicity of sects. The degree 
of security in both cases will depend on the number of 
interests and sects; and this may be presumed to depend 
on the extent of country and number of people compre- 
hended under the same government. 

and again': 

25. To give a minority a negative upon the majority 
(which is always the case where more than a majority is 
requisite to a decision) is, in its tendency, to subject the 
sense of the greater number to that of the less. . . . 
The public business must in some way, or other, go for- 
ward. If a pertinacious minority can control the opinion 
of a majority, respecting the best mode of conducting it, 
the majority, in order that something may be done, 
must conform to the views of the minority; and thus the 
sense of the smaller number will overrule that of the 
greater, and give a tone to the nationaP proceedings. 

In America majority rule is prevalent; minority- 
representation, exceptional. 

26. Hamilton devotes one number of the 
Federalist^ to a discussion of the question wheth- 
er different classes of the people should be 
represented "by persons of each class," i.e.^ 
merchants by merchants; mechanics by mechan- 
ics; the learned professions by lawyers, doctors, 

I Federalist, No. XXII. (Hamilton). 
" Also state or local proceedings. 
3 No. XXXV. 



The Legislative 85 

clergymen; the landed interest by landowners, — 
and he pronounces the idea "altogether vision- 
ary." His answer is that "a man who is a can- 
didate for the favor of the people, and who is 
dependent on the suffrages of his fellow-citizens 
for the continuance of his public honors (will) 
take care to inform himself of their dispositions 
and machinations and (will) be willing to allow 
them their proper degree of influence upon his 
conduct." "This dependence and the necessity 
of being bound himself, and his posterity, by the 
laws to which he gives his assent, are the true, 
and they are the strong chords of sympathy 
between the representative and the constituent." 
27. Another form of minority representa- 
tion is proportional representation.' Whatever 
method be followed, the purpose is to secure the 
ends sought by representation. Thus far, in 
America, representation of the majority has 
been considered equitable, in quite all instances.' 

' Examined at length by Thomas Hart, The Election of Represen- 
tatives, and by J. S. Mill, Representative Government. Consult also 
the article on "Representation," Encyclopaedia Britannica, 11th 
Edition, XXIII.. 108-116. 

' There is nothing in the Constitution of the United States that 
forbids minority or any form of proportional representation. The 
mere method, or procedure of securing representation is not there fixed. 
For an application of the principle of representation by other than 
" majority rule " see Constitution of Ohio, Art. XL, §§ 2. 3, 4; Illinois, 



86 Essentials of American Government 

28. Against minority representation, in any 
form, objection, elaborated in argument, is 
made that only majority representation can fix 
responsibility in legislation. 

29. As the essential purpose in legislation is 
to establish justice, and as representation is the 
basis of American government, the conclusion 
is inevitable that only complete representation 
can establish justice. In theory, the sovereign 
can do no wrong, — i.e., no unlawful act. In 
America the people are sovereign. To law- 
makers they delegate powers of legislation. 
Legislatures, — the Congress, the State Legisla- 
tures, are agents elected by the people for a 
particular purpose. Ours is "a government of 
laws, not of men.'" Of vast practical impor- 

1870, Art. IV., §§ 7, 8; minority representation as to election of num- 
bers of the lower branch (H. R.) of the State Legislature; Pennsyl- 
vania, 1873, Art. XIV., § 7 (minority rule applied in the election of 
county auditors and county commissioners). See F. D. Bramhall, 
The History of Cumulative Voting and Minority Representation in 
Illinois, 1870-1919. 

' Aside from long personal experience in legislation, or adequate 
study of the subject, knowledge of it is likely to be scanty and un- 
reliable. 

The American constitutions are the source of information, and 
instructor and student are directed to these as of primary significance. 
The constitution of any State (preferably one's own) may be made 
the basis for comparison. The Article in a State constitution entitled 
"The Legislature" (or equivalent) is usually the longest and the 
most detailed. Provisions affecting legislators and legislation, and 



The Legislative 87 

tance, in legislation, is the appropriation of public 
money. The procedure involves the whole 
question of the " Budget." This estimate may be 
made by the Executive only (with aid of Heads 
of Departments), by the Legislative (Commit- 
tees) only; or by conjunction of both. Should it 
be mandatory? 

especially, representation, will also be found in other Articles. For a 
discussion of two important powers of legislatures, see the Chapters 
on "Taxation" and "Commerce." An excellent work is American 
Legislatures and Legislation, by Paul R. Reinsch. 



CHAPTER IX 

THE EXECUTIVE 

1. The people of the United States vest 
executive power in a President; the people of a 
State, in a Governor. The President is elected 
by special electors; called presidential electors 
who are elected by the people. The Constitution 
of the United States provides '*that each State 
shall appoint in such manner as the Legislature 
thereof may direct a number of electors, equal 
to the whole number of Senators and Representa- 
tives to which the State may be entitled in the 
Congress.'" Further provision is made by the 
Constitution for the election of the President by 
these electors; also for his election in case these 
electors fail. 

2. In case of their failure to elect a President 
the election devolves on the House of Representa- 
tives to choose him, each State having one vote.^ 

I Art. II., 2. 

'See original provision, Art. II., 3, and Amendment XII. (1804). 

88 



The Executive 89 

3. Governors are chosen by direct vote of the 
people of a State. It will be observed that the 
federal Constitution leaves the method of secur- 
ing presidential electors (known popularly in the 
aggregate as the Electoral College) to the respec- 
tive State Legislatures, — a statutory proceeding, 
and a recognition (as in case of a disputed elec- 
tion, when the House elects) of the portion of 
sovereignty remaining in the States, — analogous 
to the recognition of that portion implied by the 
equal vote allowed each State in the Senate of 
the United States. 

4. Both the national Constitution and that 
of each State prescribes qualifications of its 
executive as to citizenshp and residence; the 
federal Constitution also (as some State constitu- 
tions) that of age. The federal also prescribes 
nativity.^ 

5. These constitutions provide also for elec- 
tion of a Vice-Executive, — the Vice-President, 
the Lieutenant-Governor, qualified as the chief- 



South Carolina was the last State "to appoint" presidential electors 
(1860); in all States they are elected by direct vote of the people, and 
generally as State- wide candidates; not by districts. 

I Though nativity is not usually required of governors by the 
written constitution of a State, persons, not native-born are rarely 
chosen governors. 



90 Essentials of American Government 

executive, and made President of the Senate 
(federal or State) whenever he chooses to execute 
the office. In case of the death, resignation, or 
inabiUty of the Chief -Executive to perform the 
duties of his office they fall upon the Vice- 
Executive. 

6. In case of the death, resignation, or in- 
ability of both Chief -Executive and Vice-Execu- 
tive, the succession in execution of the executive 
office is according to the law.^ 

7. Thus in the vesting of executive powers 
by the people the principle of representation ob- 
tains. The executive possesses delegated powers. 
These powers are limited in time, by the term of 
his office, and are limited in kind by specific 
provisions, chief of which are as to executive use 
of the "pardoning power and of the appointing 
power. 

8. There is a theory of government that it 
emanates originally from the executive, — say as 
chief, as leader, as the strong man. So Carlyle's 
remark on the word "king," as derived from 
koenig, koennen, the man who can. Whatever 



^ That is by statute : Act of Assembly or of the Congress, as the 
case may be. The act is known as the presidential, or the guber- 
natorial succession law. 



The Executive 91 

theory of the origin of government may be ad- 
vanced, the evidence of history supports the 
view that the king (or whoever dominated pub- 
lic affairs) granted 'privileges {e.g.y as Queen 
EHzabeth and other sovereigns granted charters) , 
and privileges are asserted by their holders as 
rights. Or, — another view, — the people com- 
pelled grants and privileges which are denomi- 
nated "natural rights" — as set forth in the De- 
claration of Independence. 

9. Whatever theory may be held of the origin 
of government among men, all agree that the 
republican form means elimination, more or less, 
of the monarchical or absolute form. The par- 
doning and the appointing power of the executive 
are his principal powers. His so-called partici- 
pation in legislation,^ — by approval or disap- 
proval of bills is (as Hamilton might say) "a 
constitutional recognition of the portion of 
sovereignty remaining" in the executive, — a 
portion, in the concept of representative govern- 
ment, delegated to him by the true sovereign, the 
people. Fundamentally, in the American system 
of government, all the powers of the executive 
are delegated powers. Limitations of his powers 
mean no more than that the sovereign has not 



92 Essentials of American Government 

delegated some powers to him, or, to use con- 
stitutional language, they "are reserved to the 
States respectively, or to the people."^ 

10. The pardoning, the appointing, and all 
other powers vested in the Executive, federal or 
State, are evidences of their respective jurisdic- 
tions. Thus the President makes treaties "pro- 
vided two thirds of the Senators present concur"; 
"no State shall enter into any treaty, alliance, or 
Confederation," — whence no Governor can make a 
treaty. This limitation may be understood as 
incident to the respective jurisdictions of the two 
executives. A jurisdiction may be described as 
a domain within which power is exercised, — or a 
function, capacity, or office of judging or govern- 
ing. The American people have established two 
jurisdictions, — one, of the United States, the 
other, of the several States. These jurisdictions 
are subdivided, for purposes of establishing 
justice.^ 

' An examination of the federal Constitution, and of any State 
constitution, reveals the limitations on the Executive. See Charters 
and Constitutions. 

' In the United States and in the States the subdivisions are execu- 
tive, legislative, judicial, and administrative. The subdivisions are 
innumerable, — such as the authority of minor officials. For an 
account of some of these divisions and subdivisions see The American 
State Series, — e. g.. The American Executive and Executive Methods, by 
J. H. Finley; Local Government in Counties, Towns and Villages, by 



The Executive 93 

11. The essential function or duty of an ex- 
ecutive is "faithfully to execute the office," — as 
is stated in the oath taken by the President or 
the Governor before he enters upon the execution 
of his office. An illustration in point is Lincoln's 
statement to Horace Greeley, in his letter of 
August 22, 1862: " My paramount object . . . 
is to save the Union." This is the solemn mean- 
ing of the presidential oath, — the full signifi- 
cance of the President's sworn promise, "faith- 
fully to the best of my ability (to) preserve, 
protect, and defend the Constitution of the 
United States." And what is the Constitution? 
"The Supreme Law of the land." Who ordained 
and established this law? "The people of the 
United States." 

12. For what purpose? "To establish jus- 
tice." Thus the American people vest executive 
power in a President of the United States, and 
the people of the several States vest executive 
power in a Governor, for one fundamental 
purpose: "to establish justice." 

J. A. Fairlie; Territories and Colonies, by W. F. Willoughby. The 
Federalist discusses "jurisdiction," passim. So too James Bryce, in 
his American Commonwealth. The word "jurisdiction" is commonly 
used with reference to the authority of a court of law; it may properly 
be used with reference to that of a legislature, or an executive. 



'94 Essentials of American Government 

13. Every Governor, before entering upon 
the duties of his office, takes oath (or makes affir- 
mation), faithfully to the best of his ability, to 
preserve, protect, and defend the constitution of 
his State and of the United States. All laws are 
made by authority of the Constitution.^ 

14. The whole duty of the Executive, — na- 
tional or State (or subdivision of a State, as a 
city) , is to execute the laws. Simple as this state- 
ment may seem it means an immense responsi- 
bility. Failure to execute the laws, — which 
means "to preserve, protect, and defend the 
constitution" constitutes a misdemeanor, or a 
crime (the federal Constitution mentions treason 
and bribery),^ on conviction for which, the execu- 
tive shall be removed. The procedure by im- 
peachment is prescribed.^ The impeachment is 
the accusation; the conviction is the judgment 
resulting in removal from office. President 
Johnson was impeached but not convicted; a 
Governor of New York was both impeached 

' The federal Constitution is part of every State constitution; 
State laws comply with State constitutions, and both with the "Su- 
preme Law of the land," Art. VI., 2. It is the custom in all States 
for officials of whatever rank, to swear allegiance to the United States, 
before entering upon the duties of their office. 

=» Art. II., 4. 

3 Both in the federal Constitution and in that of a State. 



The Executive 95 

and convicted. The entire procedure is po- 
litical.^ 

15. The American Executive is an elected 
oflScial, vested with power by the people. He is 
not a sovereign; he is an agent of the sovereign, 
the people. In every respect, his office conforms 
to the fundamental idea in American govern- 
ment, — the principle of representation.^ 

' See D. M. De Witt's The Impeachment and Trial of Andrew 
Johnson, also W. A. Dunning's, Essays on the Civil War and Recon- 
struction. 

' The power of a President of the United States, so President Hayes 
is reported as remarking, has "never been realized, and the practical 
use of power, even by an ordinarily strong President was (is) greater 
than the books ever described. . . . The executive power is large 
because not defined by the Constitution. The real test has never 
come, because the presidents have, down to the present, been con- 
servative, or what might be called conscientious men, and have kept 
within limited range. And there is an unwritten law of usage that has 
come to regulate an average administration. But if a Napoleon ever 
became President, he could make the executive almost what he 
wished to make it." 

C. E. Stevens, Sources of the Constitution of the United States, 169 n. 
This remark by President Hayes may be compared with Hamilton's 
characterization of the national Executive inihe Federalist, No. LXIX 



CHAPTER X 

THE JUDICIARY 

1. The people of the United States vest 
judicial power in one Supreme Court and in such 
inferior courts as Congress may from time to time 
establish'; the people of the several States vest 
the judicial authority of the State in like man- 
ner, by the several State constitutions. In all 
matters in which the Constitution of the United 
States, an act of Congress or a treaty is con- 
cerned, the federal courts have jurisdiction. In 
as much as the federal Constitution is part of 
every State constitution and all State judges are 
bound by oath by that constitution, the State 
courts also have jurisdiction in cases arising 
under the Constitution, an act of Congress, or a 
treaty. But final judgment in such cases rests 
with the Supreme Court of the United States. 
In any court of law judgment is rendered only 
after trial, — or as the Constitution says, by "due 

» Art. Ill, 1. 

96 



The Judiciary 97 

process of law." There is an issue, a disputed 
point between parties, constituting a *'case at 
law" before the court, and no other issue is tried. 
Whether the case is tried by a federal or a State 
court — each having jurisdiction — depends largely 
on the will of the parties and the advice of counsel. 

2. It may be said that jurisdiction often de- 
pends upon (a) the nature of the case, or (b) 
the status of the parties. The Constitution of the 
United States describes the judicial power of 
the United States as to the parties and the case 
in the second section of the third article. Wheth- 
er or not the case shall be brought in the 
Supreme Court by appeal from some lower 
court, or directly, — or as the Constitution says, 
— come within the *' original jurisdiction" of the 
Supreme Court, depends upon (a) the nature 
of the case and (b) the status of the parties. 
The original jurisdiction of the Supreme Court 
of the United States is limited to cases "affecting 
ambassadors, other public ministers and con- 
suls, and those in which a State shall be a party. "^ 

3. This original jurisdiction recognizes the 
status of the party as sovereign, or representa- 
tive of sovereignty. The "State" means the 

'Art. III., Sec. 2:2. 

7 



98 Essentials of American Government 

people of a State, — who, for many purposes are 
sovereign.^ Ambassadors, public ministers, and 
consuls are the agents or representatives of sover- 
eigns. Because of the character, — nature (sta- 
tus) of the parties, the Constitution provides 
that they may start their case in the Supreme 
Court of the United States.^ Rarely is a case 
before this court at first instance ; quite all cases 
before it are on appeal from an inferior federal 
court, or from the highest Court of a State 
(usually called in its Constitution, the Supreme 
Court). The procedure in cases of appeals is 
regulated by law; the principal law being the 
federal Judiciary act of 1789, as amended. 

4. The constitution or the law may authorize 
the existence of a court, but the opinion or judg- 
ment of a court rests with the court (the judge, 
or judges) itself. This discretional power, vested 
in a court comprises its independence. Judicial 
independence is the essential characteristic or 
quality of a court, within its own jurisdiction. 
Supreme, complete, final jurisdiction exists in a 

^ Discussed by Marshall in Cohens v. Virginia, 6 Wheaton 264 
(1821); by Hamilton in the Federalist, LXII. See also the author's 
Essentials of Constitutional Law, Index, "Sovereignty." 

' The nature or status of the parties is discussed by Marshall in 
Marbury v. Madison, 1 Cranch 137 (1803). 



The Judiciary 99 

court so vested with power by the people. The 
opinion of the Supreme Court of the United 
States is final in all cases which reach it. The 
opinion of a State Supreme Court is final in all 
cases which reach it, — unless an appeal lies to 
the Supreme Court of the United States by- 
reason of the Constitution of the United States, 
or an act of Congress, or a treaty. The essential 
basis for such an appeal is that the issue on trial 
before the State Court involves the supreme law 
of the land.^ Thus the fundamental purpose of 
the entire, vast judicial machinery of the United 
States and of the States is for the sole purpose 
of establishing justice. 

To this end all courts of law are established. 

5. Courts are classified in many ways and for 
different purposes. And first into federal and 
State Courts. 

Federal courts are. 

(1) One Supreme Court. 

(2) Inferior Courts. 

6. Inferior federal courts are established by 
the Congress and are constitutional courts, the 



' By this is meant some right of a party to the case (the issue) as 
determinable by the Constitution, an act of Congress or a treaty is 
is affected. 



100 Essentials of American Government 

judges holding their offices during good be- 
havior. 

The inferior federal courts are the Circuit 
Courts, nine in number, one for each of the 
great divisions of the people of the United States, 
made by Congress for judicial purposes; and the 
District Courts, one for each of the Judicial 
Districts into which the people of the United 
States are further subdivided by Congress.^ 

7. Every Circuit Court jurisdiction has a 
resident judge or judges, and the nine judges of 
the Supreme Court may preside, respectively, in 

' The nine Divisions of the country for judicial purposes, known as 
the nine Circuits, are: 

I. Mr. Justice Holmes. Maine, New Hampshire, Massachusetts, 
Rhode Island, and Porto Rico. 

II. Mr. Justice Brandeis. Vermont, Connecticut, New York, 3. 

III. Mr. Justice Pitney. New Jersey, Pennsylvania, 3; Dela- 
ware. 

IV. Mr. Chief- Justice Taft. Maryland, Virginia, 4; North 
Carolina, 2; South Carolina. -* 

V. Mr. Justice McReynolds. Georgia, 2; Florida, 2; Alabama, 3; 
Mississippi, 2; Louisiana, 2; Texas, 4. 

VI. Mr. Justice Day. Ohio, 2; Michigan, 2; Kentucky, 2; 
Tennessee, 3. 

VII. Mr. Justice Clarke. Indiana, Illinois, 3; Wisconsin, 2. 

VIII. Mr. Justice Van Deventer. Minnesota, Iowa, 2; Missouri, 
2; Arkansas, 2; Nebraska, Colorado, Kansas, North Dakota, South 
Dakota, Oklahoma, 2; Wyoming, Utah, New Mexico. 

IX. Mr. Justice McKenna. California, 2; Oregon, Nevada, 
Montana, Washington, 2; Idaho, Arizona, Alaska, Hawaii. (The 
figure attached to a State indicates into how many Judicial Districts 
it is divided, — if more than one.) 



The Judiciary loi 

these Circuits.' Each Judicial District has a re- 
sident judge (or judges). The number of circuit 
district federal judges is determined by Congress, 
and (in theory at least) is determined by the 
amount of judicial business demanding attention. 

8. Territorial Courts and the Court of Claims 
of the District of Columbia are statutory courts, 
established by Congress.'' 

The State Courts are : 

(1) The Supreme Court. 

(2) Inferior Courts. 

The Supreme Court (by whatever name known) 
is a constitutional court; the inferior courts 
may be statutory courts. State judges are 
elected, save in Massachusetts, New Jersey, and 
Florida.^ Whether a judge serves by election or 
appointment he serves in a representative ca- 

' As indicated above. It is many years since a Justice of the 
Supreme Court of the United States has "gone on circuit." The 
immense business before the Supreme Court in Washington occupies 
its full time. However, a Justice of the Supreme Court has jurisdic- 
tion and may sit in any Federal Court; indeed, he may sit as a Justice 
of the Peace or in any State Court, or Court in any American Posses- 
sion; but he has no jurisdiction outside the judicial jurisdiction of the 
United States. 

' The judges in these courts (the Court of Claims consisting of a 
Chief -Justice and four Associate Judges) are appointed for a term of 
years, by the President, with consent of the Senate. 

* In Florida the seven Circuit judges are appointed by the Governor 
and confirmed by the State Senate. Judges in other courts (the 
Supreme, the County) are elected, except when appointed by the 



102 Essentials of American Government 

pacity, as an agent of the people to perform 
delegated judicial powers. 

9. The inferior Courts of a State (known by 
various names) have, respectively, limited juris- 
dictions: that of the Supreme Court being co- 
extensive with the jurisdiction of the State; that 
of an inferior court being limited by district, 
county, or city lines, — as the constitution of the 
State, or a State law may prescribe. Thus, 
the rank of any court of law is measured by 
its jurisdiction — which is another word for its 
powers. All these powers are delegated. Within 
its jurisdiction, a court is independent in its 
judgments. A higher court as authorized by law, 
may remand a case, which comes up to it on ap- 
peal from a lower court, to this lower court for a 
new trial, or with instruction to render a par- 
ticular opinion, or, may reverse the opinion of 
the lower court, giving final judgment itself, or 
may confirm that opinion. 

The explanation of all this procedure is the 
jurisdiction of the higher court. As soon as a 
case is entered in any court, that court has (un- 
less an error has been made) jurisdiction as to 

Governor to fill a vacancy. Constitution of 1894. In New Jersey 
(Constitution, 1814) and Massachusetts (Constitution, 1780) all 
judges are appointed. 



The Judiciary 103 

that case, and continues its jurisdiction until 
the case is disposed of. Strictly speaking, no 
court of law exercises jurisdiction in any matter 
not before it. 

10. State Courts are organized usually for 
special purposes — i.e.^ they sit as a particular 
court, — e.g., as 

(1) A Civil Court. 

(2) A Criminal Court. 

(3) An Orphans (Probate) Court. 

(4) An Argument Court (usually to determine 
appeals; hear petitions, etc.). 

(5) An Equity Court. 

(6) A Police Court. 

(7) A Justice's Court. 
(And others) 

Whatever the name of the court (and the same 
judge (or judges) may sit as a civil, or a criminal 
court) the essential purpose is the same, — to 
establish justice, and the court sits in a repre- 
sentative capacity. 

11. The French judicial system recognizes 
"Courts of First Instance," — i.e., in which the 
trial or examination begins. Usually this is an 
inferior court, in America, — and commonly with 
us, justices' courts, police courts, aldermen's. 



104 Essentials of American Government 

or mayors' courts are of first instance. But any 
tribunal below a county, or district court, in 
America, though it be the tribunal in which the 
preliminary hearing occurs, is not a court of law 
in the sense in which that expression is used in 
American constitutions. Or, to put the matter 
in another way, no justice of the peace, no mag- 
istrate, no mayor, is a judge, or person "vested 
with judicial powers" (to us a constitutional 
phrase). Thus commonly we speak of these 
tribunals of first instance as not being "courts of 
record." 

12. By this we mean, legally, that a court of 
record is a court (a tribunal of first instance is a 
"court"), whose acts and proceedings are en- 
rolled as a perpetual testimony, — or (to use the 
language of the Constitution) — as "judicial 
proceedings,"^ — a court which has jurisdiction 
to fine or imprison, or has jurisdiction of civil 
causes above an amount fixed by law (jurisdic- 
tion of criminal causes also), — and which pro- 
ceeds according to the course of the common 
law."^ Thus courts "not of record," — as jus- 
tices and magistrate's courts differ from "courts 

' Art. IV., 1. 

» 37 Maine, 29; also 8 Mass. 171. (Opinion by ShaAV, C. J.) 



The Judiciary 105 

of record " in degree, or jurisdiction : which means 
no more than this, — that the people have vested 
greater judicial power in the one, than in the 
other. All American courts, of whatever juris- 
diction, keep a record of all cases which come 
before them. The record of the case in the jus- 
tice's or magistrate's court may be brought, by 
due course of law, into the higher court and be 
there incorporated in the records of that court. 
The essential here is that every court of law 
"proceeds upon inquiry, and renders judgment 
only after trial." 

13. This fundamental function and duty of a 
court of law is to say what the law is.^ This im- 
plies the power of the court to pronounce 
whether or not the law harmonizes or conflicts 
with the Constitution. Any court of law. State 
or federal, possesses this power. It follows that 
government in America is a government of law 
as interpreted by men. State constitutions 
usually prescribe that these men, — the judges, — 
shall be "learned in the law," — i.e., experts in 
judicial matters. The written federal Constitu- 
tion does not prescribe that federal judges shall 
be "learned in the law," but all federal judges 

* Marshall in Marbury v. Madison, 1 Cranch 137 (1803). 



io6 Essentials of American Government 

are such men, the practice (as it were, the un- 
written law) settHng the matter. 

14. The American system of government 
provides for trial by jury, — ^which always ob- 
tains unless such procedure is waived by consent 
of parties. Every legal trial in whatever court 
of law, is by "due process of law." This brief 
phrase covers all that the people of America, — as 
a nation, or acting by States, have authorized in 
ordaining and establishing "a republican (repre- 
sentative) form of government."^ 

* The American Judiciary, by Hon. Simeon E. Baldwin, LL.D., 
remains the best account of the entire subject, in small compass. 

The Federalist, Nos. LXXVIII.-LXXXIII., by Hamilton, is the 
classic exposition of the Judiciary, contemporaneous with the making 
of the Constitution. 

J. P. Cotton's Constitutional Decisions of John Marshall reprints 
the opinions of the great Chief-Justice (i.e., of the Supreme Court of 
the United States in his time), 2 vols. 

The constitutions of the several States (see Charters, Constitutions, 
and Organic Law of the United States, etc.) show the general organiza- 
tion of the State judiciary, but only State laws, and local (especially 
city) judicial organization can explain much of the judicial system 
in a State. The actual working of American courts, discussed ably 
and somewhat at length by Bryce (American Commonwealth) and 
others, can be known only by practice, observation, and experience. 
Judge Baldwin (cited above) presents the whole case. Such publica- 
tions as the American Bar Association Journal, the Law Review 
(Harvard, Yale, Boston, etc.), and other (numerous) current publica- 
tions (articles) of a legal character, contribute to an understanding of 
the subject. The reader is also referred to the bibliography preceding 
the Index to the present volume. 



CHAPTER XI 

THE ADMINISTRATIVE 

(State and Federal) 

1. By administration is meant 

the activity of the government with the exception of the 
activity of both the Legislature and the Courts; . . . 
the activity of the executive officers of the government. 
The government administers when it appoints an officer, 
instructs its diplomatic agents, assumes and collects 
taxes, drills its army, investigates a case of the com- 
mission of crime, and executes the judgment of a court. 
Whenever we see the government in action as opposed 
to deliberation, or the rendering of a judicial decision, 
there we say is administration. Administration is thus 
found in all the manifestations of executive action.' 

2. The Executive, — State or federal, — is the 
chief administrative oflScial within his jurisdic- 
tion. In an early day, when society, industry, 
commerce, and human activity in general were 
comparatively simple, the Governor, the Presi- 
dent, was easily able to attend to the details of 

' F. J. Goodnow, Administrative Law, i., 1. 

107 



io8 Essentials of American Government 

public business committed to him, but with the 
almost unmeasurable increase of all these activi- 
ties, — transportation, education, public health, 
insurance, etc., the Chief Executive is unable 
alone, to secure efficiency of administration, — 
whence it follows that he must depend upon 
others to secure efficiency. The administrative 
officials in State and in Nation number many 
thousands: they are all public servants, — ^hold- 
ing office by appointment of the Executive, — 
sometimes by direct election by the people. 

3. In the federal government, "the principal 
officer in each of the Executive Departments"^ 
is an administrative official, — and these ''princi- 
pal officers" comprise the President's Cabinet. 
These departments (and the time of their crea- 
tion) are, of : 

(1) State, 1789. 

(2) Treasury, 1789. 

(3) War, 1789. 

(4) Attorney-General. Office established, 
1789; Department of Justice, 1870. 

(5) Navy, 1798. 

(6) Post-Office. (As a Department, 1829.) 

» Art. II.. § 2, 1. 



The Administrative 109 

(7) Interior, 1849. 

(8) Agriculture, 1889. 

(9) Commerce (and Labor), 1903. 

(10) Labor, 1913. 

4. The head of a Department is known as 
the Secretary, e. g., of State, — of War, etc. He 
is appointed by the President. The Cabinet, — 
as this group of Secretaries is called in America, 
comprises the President's official advisers, — but 
he is free to accept or to reject their suggestions.' 

5. The President is not an administrative of- 
ficial. If a member of the Cabinet is entrusted 
with a strictly executive duty, like the President, 
he cannot be controlled as to performance of that 
duty by legislation or judicial action, — i. e., by 
Congress, or by the Court. If the duty of the 
cabinet officer be ministerial, — he having no 
discretion in its performance, — a court of law 
may compel him to perform it (usually by man- 

' The conduct of the enormous business of the United States rests 
with the President. He is responsible to the people for the faithful 
execution of his oflice. (Art. II., §1:8.) He cannot delegate his 
responsibility. Strictly speaking, — all the duties of the President are 
executive; all the duties of cabinet ofGcers and officials in the several 
departments are ministerial, — but the Congress may by law make the 
performance of an act by a cabinet officer, or "head of a depart- 
ment" discretionary, and to that extent, executive, and not minis- 
terial. 



no Essentials of American Government 

damns; if forbidding performance, by in junc- 
tion. Y 

6. In the service of the people of the United 
States, — subordinate officials and employees in 
the "executive departments" of the federal 
government, — there are more than half a millon 
persons. The service of these persons is known 
as the civil service. The public service demands 
efficiency. Ability and experience are essentials 
to such efficiency. Permanency in office con- 
tributes to efficiency. Since ISSS,"* when Con- 
gress enacted the first civil service law the transi- 
tion from the "spoils" to the "merit" system 
has made progress. The essentials of the civil 
service system are : 

(1) The appointment shall be of capable 
public servants, capability to be determined by 
"civil service examination." Politics, party 
affiliation not to determine the choice. 

(2) Competent public servants shall not be 
discharged except for cause, the civil service 

' (Mandamus) — Marbury v. Madison, 1 Cranch 137; Gaines v. 
Thompson, 7 Wall 347; The Secretary v. McGarrahon, 9 Wall 298; 
U. S. V. Black, 128 U. S. 40; U. S. v. Windom, 137 U. S. 636; U. S. v. 
Blaine, 139 U. S. 306; New Orleans v. Paine, 147 U. S. 261. 

(Injunction) Mississippi v. Johnson, 4 Wall 475; Georgia v. 
Stanton, 6 Wall 57. The principle applies to State executives. 

« January 16th. 



The Administrative m 

law protecting the incumbent against discharge 
except for incompetency, neglect of duty, con- 
duct compelling dismissal "for the good of the 
service." The civil service law empowers the 
incumbent to defend himself as a public servant. 
In belief, he or she, under the law, cannot be 
removed except "for cause." Mere political 
opposition is not a sufficient cause for removal."^ 

7. The principle of the civil service conforms 
to that of representation. 

As Lincoln said, — "ours is the people's govern- 
ment." The public business, — the government, — 
is their business. That it be conducted efficiently 
is the will of the people. Whence the civil service 
law of 1883, and later amendments.^ 

8. Within the State, administrative effi- 
ciency is demanded by the people, — the demand 
taking the form of constitutional provisions, of 
statutes, and of public opinion. 

Prior to 1840 the State constitutions may be 
said to contain little or nothing specifically ad- 

' See chapter XXVIII, " The Civil Service," in James T.Young's 
The New American Government and Its Work — with its references to 
authorities for details. The principle of the civil service is rapidly 
being given application and extension by the States. 

' Not all administrative officials come under the civil service law. 
E. g., it does not apply to cabinet officers, or (generally speaking) to 
principal (subordinate) officials in the "executive departments." 



112 Essentials of American Government 

ministrative in character. To-day, every State 
constitution (in its original form, or by amend- 
ment) contains such provisions. The trend, at 
present, is toward the estabUshing of commis- 
sions, or provision for a Commissioner, that shall 
be responsible for efficiency in a Department of 
the State government. No two States have 
quite the same Departments, — but in the aggre- 
gate, these appear: 

Justice. 
Education. 
Mines and Mining. 
Labor. 
Insurance. 
Health. 
Banking. 

Roads and Highways. 
Forestry. 

Charities and Corrections. 
Corporations. 
Taxation and Finance. 
The Sinking Fund. 
Railroads and Canals. 
(And others) 

9. A Commissioner (or a Commission) is 
vested with authority as the head of these (and 
other) "executive departments, — " the head 



The Administrative 113 

being appointed by the Governor (with consent 
of the State Senate) or elected by the people, or 
appointed by the Legislature, — as by law pro- 
vided. 

The aggregate number of administrative offi- 
cials in the forty-eight States is very great, for it 
includes local, county, municipal, State whose 
activity is not legislative or judicial, — the Gover- 
nor himself also excluded.^ 

10. A marked tendency in recent State con- 
stitutions is to make all important administra- 
tive offices elective. The essential purpose in the 
administration of the State governments, as in 
that of the United States, is to establish justice. 
Efficiency of administration is the test. Frank- 
lin's words in the closing hour of the federal 
Convention are pertinent: 

There is no form of government but what may be a bless- 
ing to the people if well administered; and I believe fur- 
ther that this is likely to be well administered for a course 
of years, and can only end in despotism, as other forms 
have done before it, when the people shall become so 
corrupted as to need despotic government, being incap- 
able of any other.* 

' The number of State administrative officials is not available as an 
exact number. The number increases continually and includes all 
employees in the Departments. 

* One is reminded of a passage in Pope's celebrated letter to Bishop 
8 



1 14 Essentials of American Government 

The fate of representative government de- 
pends upon its administration.^ 

Atterbury, November 20, 1717: "I hope all churches and all govern- 
ments are so far of God, as they are rightly understood, and rightly 
administered." 

' Our every day relations with government, — federal or State 
(especially local), reveal the efficiency or the inefficiency of adminis- 
tration. Maladministration of office is sufficient cause for impeach- 
ment, conviction, and removal from office. Reelection, or re-appoint- 
ment of an official, is evidence (generally) of that official's efficiency. 
The whole subject, "The Administrative," is discussed in its legal 
aspects, by President F. J. Goodnow in his two volumes on Compara- 
tive Administrative Law (the U. S. A. and England, France, Germany), 
and his volume on Administrative Law treating of the U. S. A. The 
economic aspects of "Administration" are treated by many writers. 
Any standard textbook on Economics, Transportation, Finance, 
Trade and Commerce, etc., discusses the subject and (usually) gives 
an adequate bibliography. The issues between political parties are 
(usually) administrative. Magazines, newspapers, books, pamphlets 
are ever presenting some phase of administration. The official term 
of President or Governor is called an administration: a fact that tells 
the whole story. 

For an account of the new civil administrative code of the State 
of Washington (1920-21), see The American Science Review, Novem- 
ber, 1921, and the same for administrative consolidation in California. 



CHAPTER XII 

POLITICAL PARTIES 

1. Persons organized as a unit in order to 
control the public business (the government) 
according to political ideas held by them in 
common comprise a political party. Govern- 
ment in America, State and federal, is party 
government. Sometimes (very rarely) when 
the public business is in a critical condition, a 
coalition government is formed, — that is, the 
chiefs of state are, in the aggregate, the repre- 
sentatives (usually the leaders) in the two or 
more parties into which the people are divided. 
In America, such a coalition government is 
formed when a chief executive, State or federal, 
summons to his council,— his Cabinet,— as heads 
of executive departments, the representatives 
(usually the leaders) of contending parties.' 

'Washington thus summoned Hamilton as Secretary of the 
Treasury, and Jefferson. Secretary of State. The irreconcilable opin- 
ions of these two men led finally to their resignation from the Cabinet. 
Lincoln's Cabinet was a coalition. Here difference of opinion among 

"5 



ii6 Essentials of American Government 

2. Every political party strives to become the 
majority and thus to control the public business. 
It is impossible to define all the differences of 
opinion which characterize political parties; the 
principal differences are shown by their respec- 
tive "platforms," or party creeds. These plat- 
forms, the separate parts or paragraphs of which 
are called "planks," are adopted by representa- 
tives or delegates of the party assembled in 
Convention, — the name of these Conventions, — 
County, State, National indicating the political 
jurisdiction represented. In these Conventions, 
platforms are adopted and party candidates for 
office are named. The platform and the candi- 
dates agreed upon, the Convention adjourns, 
sine die, and the people (the voters) within the 
jurisdiction, at the polls, accept or reject the 
platform and the candidates. Or, nomination of 
a candidate may be made by "petition," — i. e., 
by signature of a percentage of the voters 
within the jurisdiction, — the percentage is fixed 
by law, — and this candidate is voted for or 

counselors of an executive do not mark the council as a coalition. 
The difference must be partisan. President Wilson was criticized, in 
certain quarters, because he did not form a Coalition Cabinet during 
the World War, and did not summon some other than men of his own 
party as advisors when he went to the Versailles Conference. 



Political Parties 117 

against, as all the candidates named by a con- 
vention. 

3. Plainly, here, the principle of representa- 
tion is followed, — in choosing delegates to the 
Convention, — in nominating candidates, and 
in the election of them. 

Historically, there are two great parties in the 
United States, — the Hamiltonian and the Jeffer- 
sonian, — i. e., the party of liberal, and that of 
strict construction of the Supreme Law of the 
land. The history of political parties in America 
discloses marked variation from this difference, 
at times; the Hamiltonians supporting the Jeffer- 
sonians.^ The issue between parties is usually 
administrative, as for example, taxation: not 
that there shall or shall not be taxation, but shall 
this or that article or interest be taxed and how 
much: essentially, an issue of method, or 'procedure. 

4. At present the American people are 
divided, politically, into three national parties, 
the Republican, the Democratic, and the Labor 
Party. There are minor groups, or parties, 
strictly local. ^ The platforms of parties must 



' As in 1803, in the purchase of the Louisiana country; again, in 
the support of Lincoln's policies by Jeffersonians, lSGO-65. 

* For the platforms of present parties see the World or the Tribune 



ii8 Essentials of American Government 

always be interpreted by events. Usually, the 
language of a platform is ambiguous. The 
makers of party platforms usually succeed in 
avoiding direct issues, leaving these to be dis- 
cussed, — if at all, — during the campaign, by 
selected speakers of the party. Each party 
publishes a handbook for the use of its speakers 
— as a guide, monitor, and unifying element in the 
campaign. This handbook or manual, contains 
statements, statistics, and other matter defensive 
of the doctrines of the party, and as destructive 
as possible of the doctrines of opposing parties. 

5. Not only speakers, but newspapers, maga- 
zines, books, pamphlets, and a vast "campaign 
literature" support the party. Also business 
helps by subscriptions, — as do candidates for 
office, at the hands of the party and their friends. 
The total expenditure of energy and money is 
almost fabulous, in a campaign. In order to 
prevent bribery and corruption, laws regulate 
the amount of money a candidate may expend 
in a campaign, or require him to file a report 
(open to the public) of the amount expended.^ 

Almanacs. For platforms 1789 to 1896, see T. H. McKee's, National 
Platforms of All Political Parties; also the standard encyclopaedias. 

^ The wealthy candidate has the advantage of the poor, in a 
campaign, unless the law strictly regulates expenditure, by or for the 



Political Parties 119 

6. Each House of the Legislature of a State, 
each branch of the Congress is "the judge of the 
elections, returns, and qualifications of its own 
members,'" — and a majority of each House 
renders the final judgment. The majority is 
always of one party, and usually, in case of a 
disputed election, — i. e., of two persons claiming 
the right of a seat in the body, the vote admitting 
either claimant is political, — partisan. Thus 
Republican members usually vote for the Re- 
publican claimant; Democratic members for the 
Democratic. 

However, party lines are often broken, in a 
vote on the case, according to its merits. 

7. A disputed election of executive or minis- 
terial officials is usually settled by the recount 
of the ballots in a court of law.^ 



candidate. It is not unusual for a candidate, or his supporters, to 
expend more for his election than the salary of the ofBce he seeks. 
The Newberry-Ford case (Michigan, — election to U. S. Senate) 
illustrates fully the use of money in elections. (Sec Michigan Sena- 
torial Election 67th Congress, 1st Session, and accompanying 
documents.) 

> Art. I., § 4. 

' A very important exception is the case of disputed election of 
President and Vice-President of the United States. See Constitution, 
Art. II., §§2, 3; and Amdt. XII. Usually a disputed election of a 
Governor is ;;ettled by the Court. Examination of the State constitu- 
tion will reveal any other procedure. 



120 Essentials of American Government 

8. Political parties, duly organized according 
to law, are essential to the administration of 
representative government. As yet, no substi- 
tute for them has been discovered. They afford 
every voter an opportunity to express his will, as 
to government. He may, if he chooses, vote 
independent of any party. The ballot is printed 
and distributed usually, by authority of the 
State. The voter must use this imprint, but he is 
free to add to, or to omit, any name printed on 
the ballot.^ Without exception, voting by the 
people directly, is by ballot; voting by their 
representatives in the Congress, or the State 
Legislature is viva voce. In either case, the voter 
votes (or is supposed to vote) a free vote, — i. e.,as 
his judgment dictates. Election laws. State and 
federal, aim to secure this freedom. 

9. In America all voting is done by means of 
State machinery, or procedure. There is no dis- 
tinctively federal procedure. The United States 
utilizes the States in elections. Thus on the 
official State ticket there appear names of candi- 
dates as presidential electors, as Senators of the 
United States, as Congressmen, — i. e., members 
of the federal House of Representatives. That 

^ This addition or omisriion is called "scratching" the ballot. 



Political Parties 121 

the United States has power to regulate federal 
elections, — as to time, manner, and other details, 
is unquestionable.' 

10. In order more perfectly to apply the 
principle of representation the people have (or 
may have) different days for State, city, and 
federal elections, thus securing undivided atten- 
tion to the issue,— be it the one or the other. 
This procedure prevents, or tends to prevent, 
neglect or confusion of interests. When a State 
election occurs at the same time as a presidential, 
the vote for Governor may merely be due to the 
vote for President,— though, were the election of 
a Governor the principal issue, the result might 
be very different.^ Ordinarily if a State goes 
Democratic or Republican in a presidential 
election, if a Governor is also to be elected, the 
vote for Governor will be practically the same as 
for President.^ 

11. There are more than twice as many 

' Ex parte Siebold, 100 U. S., 371 (1870). Ex parte Yarborough, 
110. U. S., 651; Wiley v. Sinkler. 179 U. S., 58 (1900). 

' Grover Cleveland's election as Governor of New York, R. B. 
Hayes' of Ohio. Woodrow Wilson's of New Jersey, in presidential 
years, despite the election of a President of an opposite party, made 
them, later, presidential candidates. 

3 In this case the gubernatorial candidate is said to "run ahead of," 
or "behind" his ticket; the presidential vote being the unit of meas- 
ure (or any other candidate for a State office). 



122 Essentials of American Government 

*' inhabitants" of the United States, — i. e., 
"people" in the common use of the word, — than 
"voters."^ Rarely do more than one third of 
the voters vote. A candidate is usually elected 
by a majority of a minority of voters. However, 
the representative principle here prevails. If 
government in America is actually controlled by 
a minority, — that minority is a majority of 
actual voters and represents all the people within 
the jurisdiction concerned. 

12. Should this be remedied.? Can it be 
remedied? Should every person in the United 
States, qualified to vote, be compelled to vote, 
or suffer a penalty.?^ 

Is the idea (or principle) regulating elections, 
by law, the same idea (principle) as compelling 
the voter to vote.^^ Would the principle of repre- 
sentation, — which is the pivot on which all 
republican governments turn, be violated or 
observed by compulsory voting? 

13. In other words, is a "republican form of 
government," such as prevails in America, any 

^ The present population is about 110,000,000; the number of 
voters, about 55,000,000; there being about 1,000,000 more male 
than female voters. 

' Compulsory voting was tried in Georgia, penalty for absenting 
and neglecting to vote, not exceeding five pounds. Constitution, 1777, 
Art. XII. Failure. 



Political Parties 123 

less or any more representative if voters are free 
or are compelled to vote at elections? Would 
American political institutions be more or less 
secure, if compulsory voting at elections was the 
law of the land? 

14. By free and frequent elections, the people 
control government in America. Government 
with us always reflects the will of a dominant 
political party.' 

• The suhieci,— elections, is discussed by every writer on govern- 
ment in America. The use and the abuse of elections are quite end- 
less subjects of examination. The details of elections can be learned, 
in any State, only by examination of its election laws. Usually these 
are obtainable in a single volume,— together with instructions for 
election of officers. No one book giving the election laws of the 
several States exists. The authorities cited in the bibliography at 
dose of the present volume discuss "elections" in their various as- 
pects For a special work on the subject see M. Ostrogorski's 
Democracy and the Organization of Political Parties; Bryce's Ameri- 
can Commonwealth; P. O. Ray's Introduction to Political Parties and 
Practical Politics. The whole subject is involved in the larger 
Politics. The American Party System, by Charles Edward Merriam 
(1922), is the most exhaustive work on the subject; it comes into 
the author's hands too late to be included in the Appendix, " I. A 
Word About the Books," or to be indexed. 



CHAPTER XIII 

PUBLIC OPINION 

1. Behind American government, whatever 
the jurisdiction, federal or State, Ues pubKc 
opinion. In its nature pubHc opinion is a quality 
or element of a people as a whole, being composed 
of a consensus of many minds ; essentially, of the 
majority. It is in a large sense the "They say" 
of a people, and finds expression in individual 
speech, in utterances spoken and written, — con- 
versations, speeches, sermons, books, news- 
papers, pamphlets, circulars, notices, — even 
whisperings. 

1. The forms and the agencies of its expres- 
sion are numberless. Public opinion is doubtless,, 
at some time, a private thought and usually this 
thought spreads by means of the agencies above 
mentioned. Nor is public opinion necessarily the 
thought of the educated class, or of the mob. 

Even public opinion has, as it were, its jurisdic- 

124 



Public Opinion 125 

tion, or domain, — local at one time, continental 
at another. 

3. Thus it finds expression in conformity to 
law, — as at the polls, or in defiance of law, as at a 
lynching. It dominates a precinct, a ward, a 
portion of a city or a county, supreme over law 
and order, or supreme when there is no law. It 
is not the opinion of a class or cult, — as of this 
group of artisans or that group of religionists, — 
for groups, or sects, or factions in society may be 
controlled by a public opinion held by a greater 
number than their own. Thus "the public" has 
"rights" which common carriers must respect, 
even though these carriers are at war among 
themselves. Steamboats and trains must run, 
telegraphy and telephony must serve, despite 
"strikes," "lock-outs," wage-disputes, disputes 
over time, and the like. 

4. Public opinion wills that the "public" 
shall suffer no harm. Thus public opinion sup- 
ports constitutions and laws, — or condemns 
them, — with the result that the law is "a dead 
letter," or is supreme. 

5. The principal problem which all rulers, — 
all candidates for office, — all officials, — all agents 
of the people in government seek to solve is to 



126 Essentials of American Government 

discover and to comply with public opinion. In 
brief this problem consists in knowing and doing 
what is "popular." Doubtless, in America, the 
best illustration of this concern is the compliance, 
or effort at compliance, which a representative 
makes with respect to his "constituency," — 
that group of people, — usually organized as a 
District, which he represents. How often does 
he "consult" his constituency.^ By attention 
to letters from persons of influence in it. By 
assiduous attention to its newspapers, — their 
editorials, their "letters from the people." He 
consults and confers with its "prominent" citi- 
zens . He believes he knows its * ' public opinion . ' ' 
If occasion demands, — he goes among his constit- 
uents, — converses with all sorts and conditions 
of people, and shapes his course accordingly. 

6. In an absolute monarchy public opinion is 
the opinion of the monarch, which he imposes on 
his subjects by force. In a representative 
government, public opinion is the will of the 
majority which it imposes on the minority. 
Essentially the rule of public opinion is by force. 
The difference is that between a power of the 
people and one not of the people. No more 
comprehensive, epigrammatic definition of repre- 



Public Opinion 127 

sentative government, in all aspects of govern- 
ment has been made than Lincoln's "govern- 
ment of the people, by the people and for the 
people." Substitute "opinion" for "govern- 
ment" in this saying, and you have a descrip- 
tion of the power, or force, which controls in 
America. 

7. Public opinion is ascertained by elections. 
Samuel Adams was wont to say, — "When fre- 
quent elections cease, liberty dies." The fre- 
quency of elections depends upon the will of the 
majority. Shall there be annual, biennial, or 
quadriennial elections for State legislators, or 
other public servants ? Shall a State Legislature 
sit a year or a number of days fixed by the State 
constitution?^ The tendency in America, as 
dominated by public opinion, is to limit sessions 
of State Legislatures to biennial sessions; to fix 
the length of a session by the State constitution ; 
to forbid special legislation; to forbid, by the 
same authority, legislative consideration of new 
bills the last (three, ten?) days of a session, and to 
discourage extra sessions (unless called by the 

' The Constitution of Georgia provides, "No session of the general 
Assembly shall continue longer than forty days, unless by a two- 
thirds vote of the whole number of each house." Vote of 1877. Art. 
III., § 4, Part YI. 



128 Essentials of American Government 

Governor) or "prolonged" sessions by limiting 
the pay of legislators during such sessions/ 

8. This means that public opinion, demand- 
ing efficiency in government, — i. e., at the hands 
of public servants, — seeks to realize it, in legisla- 
tion, by constitutional restrictions. A similar de- 
mand may be found in constitutional restrictions 
as to executives and administrative officials.^ 

9. In America public opinion usually finds 
expression in public meetings in which current 
issues are discussed by influential citizens. At 
time of agitation of a matter, these meetings are 
usually attended and addressed by persons not 
identified with politics or the public business. 
Known abstention from identification of such 
persons with politics usually adds to the in- 
fluence of these gatherings. 

10. Sooner or later, every important interest 
and aspect of government is subjected to this 
test of public opinion. Public servants who act 
counter to it are sure to be displaced by others 
who will obey such opinion. It is evident how 

I Examination of State constitutions, made during the last thirty 
years, will supply illustrations. See Ala., 1901; Arizona, 1912; Del., 
1897; Miss., 1890; N. Y., 1894; Mich., 1850, 1908. 

^ The instructor may advantageously call the attention of the class 
to such restrictions in State constitutions. See American Charters, 
Constitutions, and Organic Acts. 



Public Opinion 129 

essentially important is a healthy, a moral public 
opinion. 

11. Of the organs of public opinion in 
America newspapers undoubtedly rank first. 

Were it left to me [wrote Jefferson], to decide whether we 
should have a government without newspapers, or news- 
papers without a government, I should not hesitate a 
moment to prefer the latter. But I should mean that 
every man should receive those papers and be capable 
of reading them. ^ 

12. Dr. Franklin aimed to educate public 
opinion, which he did with marvelous skill and 
power by his English and American pamphlets.^ 
He is ever advocating thrift, material and moral; 
self -improvement; self -education ; the use of the 
right book ; the value of historical studies ; the value 
of debating societies ; of public libraries ; of scien- 
tific experiment, — and of education in general.^ 

Lincoln molded the public opinion of all the 
northern States as to slavery by his Debates 
with Senator Douglas in 1858."^ 

' Letter to Carrington, Januarj' 16, 1787. 

' See particularly his Rules for Reducing a Great Empire to a Small 
One, and his Edict of the King of Prussia, — also his Humble Inquiry 
Into the Nature of Paper Money. 

3 See Franklins Influence in American Education," Report, U. S. 
Bureau of Education, 1902. 

< Printed in editions of Lincoln's Works (Century, Gettysburg, 
or Putnam Edition) and in special editions. 
9 



130 Essentials of American Government 

13. The pulpit is a powerful organ of public 
opinion to which government in critical times 
appeals.^ 

14. Sometimes a single pamphlet as Paine's 
Common Sense, consolidates public opinion.^. 

15. Of vast influence in molding public opin- 
ion in America are the attitude, the interests, the 
claims of particular classes. This is shown by the 
industrial history of the country. Public opinion 
demands a fair wage and a full day's work for 
artisans, employees, for skilled or unskilled labor. 
"Strikes," "Walk-Outs," and labor difficulties 
generally receive or are denied the support of 
public opinion as they succeed or fail; or, fail or 
succeed as they receive, or are denied the support 
of public opinion. 

16. There is a saying in America, "Public 
Opinion rules." Always there is demand for 
"justice." "Why"— asked Lincoln, "should 
there not be a patient confidence in the ultimate 
justice of the people?" The important word 
here is "ultimate." After all, government in 

I E. g., Lincoln's appeal to the churches; Harding's, as to support 
in the matter of the Disarmament Conference, Washington, 1921. 
Thanksgiving Proclamations (by Governors and Presidents). 

=" Doubtless this pamphlet is unique in American history in its 
immediate influence. See the author's Constitutional History of the 
United States, i., 71. 



Public Opinion 131 

America rests on public opinion and the "ulti- 
mate justice of the people." 

17. Thus we must return again to the prin- 
ciple of representation. Government in Amer- 
ica, federal and State, represents public opinion. 
It may be the opinion of yesterday; it is never 
the opinion of the future. Indeed, it is not 
always, — or even often, — the public opinion of 
to-day. 

18. Stability is a fundamental quality sought 
in government. A representative government is 
subject to frequent, sudden, even violent fluctua- 
tions of public opinion. Hence the perils of such 
government. 

19. Unquestionably written constitutions are 
a forceful stabilizer of representative govern- 
ment. The forces which work for justice stabi- 
lize public opinion.^ 

' Bryce devotes twelve chapters (Part IV.) of his work on The 
American Commonwealth to a consideration of "Public Opinion." 
An immediate entrance to the importance of the subject may be 
found in The Congressional Record, whose pages reflect public opinion 
in "Petitions," "Bills Introduced," "Messages from the President"; 
speeches; reprints of editorials, public addresses, from all parts of the 
country; and statistics, data, information quite on every subject of 
interest to mankind. The instructor may advantageously call atten- 
tion of the class to organs and agents and expressions of public opin- 
ion, — e.g., Stowe's Uncle Tom's Cabin (1852), which greatly influenced 
public opinion as to slavery; the Hamilton-Burr duel (1804) affected 
public opinion as to dueling; Henry Ward Beecher's addres.ses in 



132 Essentials of American Government 

England (1863), v/liich influenced British opinion as to the Civil War 
in America; the sinking of the Lusitania (1915), which influenced 
pubHc opinion in America as to the attitude of this country in the 
World War. In local matters, many illustrations of elections as 
determined by public opinion. 



CHAPTER XIV 

INTERNATIONAL RELATIONS 

1. Because the United States,—^', e., "We the 
people of the United States" are sovereign, they 
have international relations. They constitute a 
nation, — an equal sovereign among equal sover- 
eigns.' The Supreme Law, the Constitution of 
the United States, recognizes international law 
and international relations by providing (1) 
That all treaties made, or which shall be made 
under the authority of the United States, shall 
be the supreme law of the land";' the President 
"shall have power, by and with the advice and 
consent of the Senate to make treaties,"^ and 
*'in all cases affecting ambassadors, other public 
ministers and consuls, the Supreme Court shall 
have original jurisdiction."^ These positive pro- 
visions distinctively recognize international law 
as part of the supreme law of the land. 

' Pares inter -pares is the technical expression. 

* Art. VI., 2. 3 Art. II., § 2 2. " Art. III., §2:2. 

133 



134 Essentials of American Government 

2. But negative provisions further define 
limitations, — viz: "No State {i. e., American 
Commonwealth) shall enter into any treaty, 
alliance, or confederation."^ Nor is this the 
conclusion of the matter: to the extent that the 
United States is delegated with sovereign powers 
(these powers, strictly speaking are not sovereign 
— ^for sovereignty cannot be delegated; they are 
powers delegated by the sovereign, — "the people 
of the United States ") — e.g. — 

To coin money. 
To declare war. 
To regulate commerce, 

it alone (not a Commonwealth) can exercise 
these powers. This limitation of the powers of 
the States wholly eliminates them from the 
status or rank of nationality. 

3. As members of the Union the several 
States are in equality, one with another, — or, as 
the law expresses the relation, whenever a new 
State is admitted, — "on an equal footing with 
the original States."^ 

' Art. I., § 10: 1. 

' Art. I., 8: 17; 9: 6, 8; 10: 1, 2, 3; Art. III., 2: 1, 2, 3; Art. IV., 1: 1; 
2:1, 2, 3; 3: 1,2; 4:1; Art. V.; Art VI., 2, 3; Art. VII., 1; Amendments 
VI., X., XI., XIII., XIV., XV., XVI., XVII., XVIII., XIX. 



International Relations 135 

4. While, with respect to each other the 
States have entirely separate jurisdictions, for- 
eign to each other, — they are not in international 
relations/ There is a similarity, between the 
United States and a State in the matter of juris- 
diction, in that the jurisdiction of each is limited, 
— that of the State as a municipality, — that of 
the United States as a nation. No nation has 
jurisdiction outside of its own domain except 
with consent of the other nation, usually ex- 
pressed by treaty. Consent thus given is not an 
abandonment of sovereignty excepting by con- 
sent of the sovereign. Thus every treaty, — 
being an agreement between or among sovereign 
powers is a concession made by the sovereign for 
a consideration (trade, land, privileges) for a 
term of years. Only a sovereign power can 
make a treaty. 

5. International law being recognized by the 
Constitution of the United States becomes the 
law of the land, and therefore in every State. 
Because of this law, the people as a whole and 

See the "enabling act" for admission of a State in Charters and 
Constitutions," e. g.. Enabling Act of Montana, 1889, iv., 2289. 

• See references, previous note, as to State equality, and inter- 
state relations, particularly as to judicial records, privileges, and 
immunities of citizens, etc. 



136 Essentials of American Government 

the people as individuals are bound. Thus what- 
soever rights are agreed upon by two or more 
nations (the high contracting parties) as to per- 
sons or property control in all cases arising, in 
these nations, during the life of the treaty. An 
example is the case of one Yaker. At the time 
of his death, in 1853, in Kentucky, he possessed 
real estate there, but was an alien, born in 
Switzerland, never having become an American 
citizen. By the treaty of 1850, with Switzer- 
land,^ a citizen of his own country and his heirs 
were entitled to his estate precisely as if it were 
in that country. By this treaty the alienage of 
Yaker afforded no cause for Kentucky to con- 
fiscate his property, or in any way to deflect it 
from its lawful course to his heirs.'' Had there 
been no treaty "made pursuant of the authority 
of the United States" between our country and 
Switzerland, Yaker's property would have passed 
according to the law of Kentucky, — i.e., not 
according to what may be called positive inter- 
national law. 

6. The basis of international law is the 

' 11 Statutes-at-large, 587. 

» Honer v. Yaker, 9 Wallace 32 (1869). See also The People ex rel. 
The Attorney-General v. Gerkc, 5 Cal. 381 (1855); Head Money 
Ca:ies, 112 U. S. 5S0 (1884). 



International Relations 137 

necessity of relations, — peaceful, hostile, com- 
mercial, ethical, political, — between nations. In 
brief, the United States is a Nation, and there- 
fore has such relations. In other words, the 
United States as a Nation is a subject of in- 
ternational law, a party (one might say a 
natural party) to such law. The Nation is a 
State precisely as that word is used in the Con- 
stitution in the expression "foreign States.'" 
But as a subject of international law the United 
States is no more, no less a "state" than is any 
other, be it as vast as Russia, or as small as 
Panama. As a subject of international law the 
United States is concerned as to its existence and 
continuity; its rights, duties, and responsibilities. 
7. As an international power, the United 
States considers its own interests and those 
of other powers, and those of the whole 
world. As an international power, the United 
States, through President Harding, called the 
Disarmament Conference at Washington, in 
November, 1921. The call came from the 
United States, — was given to such powers as the 
United States believed it expedient to call for 
the purpose proposed. The particular powers so 

'Art. III., §2: 1. 



1 38 Essentials of American Government 

invited to attend were powers whom, by reason 
of circumstances, the United States beUeved 
could best effect the end desired, — the reduction 
of armaments. The United States has not power 
to compel such reduction. 

8. There can be no contract between a Na- 
tion, and an American Commonwealth. There 
is no world power that can compel world-obedi- 
ence to its will because of any world-constitution 
of government. The Constitution of Nevada 
provides that: 

The Constitution of the United States confers full 
power on the federal Government to maintain and per- 
petuate its existence, and whensoever any portion of the 
States, or people thereof, attempt to secede from the 
federal Union, or forcibly resist the execution of its laws, 
the federal Government may, by warrant of the Consti- 
tution, employ armed force in compelling obedience to 
its authority.^ 

The Constitution of Mississippi provides, 
that: 

The right to withdraw from the federal Union on ac- 
count of any real or supposed grievance, shall never be 
assumed by this State, nor shall any law be passed in 
derogation of the paramount allegiance of the citizens of 
this State to the government of the United States.* 

' 1864. Declaration of Rights, Art. I., 2. 

' 1890. Bill of Rights, Art. III., § 7. See also § 6. 



International Relations i39 

9. The Constitution of Maryland, of 1864, 
provided that: 

The Constitution of the United States and the laws 
made in pursuance thereof being the supreme law of the 
land, every citizen of this State owes paramount allegiance 
to the Constitution and Government of the United 
States. ^ 

The constitutions of Nevada and Maryland 
were adopted amidst the stress of civil war; that 
of Mississippi, in time of peace. Undoubtedly 
the authority and the allegiance here recognized 
are fundamental in American government, 
though at no other time and nowhere else so 
expressed by an American constitution. The 
essential idea here is that of recognition of 
national sovereignty. 

10. The objects of international law are 
territorial domain, boundaries, territorial waters, 
the high seas, aerial space and citizens or sub- 
jects. By international law the relations be- 
tween the United States and other nationals are 
determined, such as the rights and duties of 
diplomatic agents, of consuls, of international 
conferences, or tribunals and the meaning of 
treaties. The power to declare and wage war 

» Declaration of Rights, Art. V. 



140 Essentials of American Government 

rests wholly with the Nation through Congress.^ 
The expediency of war is a wholly different 
matter. Thus methods of warfare are largely 
national methods, but international law is ap- 
pealed to as to lawful or unlawful methods. A 
nation may preserve neutral rights, — the ques- 
tion of neutrality being one determined and 
settled by judicial decisions.'' 

11. As treaties made by authority of the 
United States are a part of the "Supreme Law of 
the Land, " the rights, privileges, and immunities 
of persons may be affected by them, — whence 
"private international law." But whether inter- 
national law be involved, as public or private, the 
issue is, distinctively, a national, or federal issue. 
The United States has jurisdiction in the case, or 
is a party to the case, or is in some way involved. 
The case is not a Commonwealth case. The 
ideas which underlie modern international law 
are ideas of World-Unity. This lofty notion is 
not peculiar to our age. The ideas and prin- 
ciples of some such unity may be discerned in 

^ Art L, § 8: 11. 

' The principal compilation on the subject is Dr. James Brown 
Scott's Cases on International Law Selected from Decisions of English 
and American Courts. (A valuable "Syllabus" practically classifies 
these cases.) 



International Relations 141 

other ages. They may be said to be the guiding- 
star of statesmen/ 

' Standard textbooks in international law may be consulted for 
details. A. S. Hershey's, The Essentials of International Public Law, 
gives twenty-eight pages to its "List of Authorities." Other valu- 
able treatises are by Ilannis Taylor, Wilson, Davis, Stockton, Tucker, 
Wheaton, Westlake, Walker, Lawrence, Halleck, Ferguson — (and 
especially) the American Journal of International Law, and J. B. 
Moore's monumental work, A Digest of International Law, 8 vols. 
Washington (Government Printing Office). 

The instructor may advantageously bring before the class current 
literature on important conferences, congresses, international events 
(as in commerce, diplomacy), also "Memoirs" by persons who have 
been in the diplomatic service (e. g., J. W. Foster's); Consular "Re- 
ports"; publications of the Carnegie Peace Foundation. Current 
publication of international law material is listed extensively in 
The American Political Science Review. If we turn to the past, to the 
history of Europe, the idea of a World-Union may be traced in St. 
Augustine {De Civitate Dei), in Macchiavelli (Le Principe), in Cavour; 
of a domination, in Napoleon, in Prussianism as seen in the recent 
World War. And at present, in peaceful agreement among nations 
by amicable conference, based upon "common counsel, mediation, 
administration, and judicial determination in controversies." (Presi- 
dent Harding in Message, December 1, 1921.) A very large (perhaps 
the largest) question (problem) in modern international law is to 
reconcile individual state (national) sovereignty with (one) world- 
sovereignty. 



CHAPTER XV 

THE PRINCIPLES OF AMERICAN GOVERNMENT 

1. The principle at the foundation of govern- 
ment in America, national, State, local, is that of 
representation. This principle is involved in 
that provision of the Constitution that the 
United States guarantees to each State a republi- 
can form of government.^ But the guarantee is 
limited to States "in this Union." Such a 
government is not guaranteed to Territories, or 
to outlying possessions. Over the territory or 
property of the United States the Congress has 
power "to make all needful rules,'"' or, if it 
chooses, "to dispose of" such territory. Thus 
the Congress could, in the exercise of its powers 
sell, mortgage, or trade off Alaska, Porto Rico, 
or the Philippines. Grave apprehensions have 
been expressed in certain quarters, lest the 
Congress exact unjust and oppressive legislation 
affecting the territory or possessions of the 

» Art. IV., § 4. =" Art. IV., § 2. 

143 



Principles of American Government 143 

United States, but such fears find no justification 
in our history. "There are certain principles of 
natural justice inherent in the Anglo-Saxon 
character, which need no expression in constitu- 
tions or statutes to give them effect or to secure 
dependencies against legislation manifestly hos- 
tile to their real interests.'" 

2. This means that the principles on which 
American government is founded always work 
justice. "To estabhsh justice'' is the supreme, 
the sole end and purpose of government, not 
only in America, but everywhere, — if men live 
up to the essential principles of life. 

3. But what of the form of government? 
Ours, in its every aspect, is "republican" (repre- 
sentative) in form. Indeed, in all our constitu- 
tions we emphasize the importance of the form 
of government. And here appears the recogni- 
tion of the mechanics of government, — the 
system of "checks and balances," as it was 
familiarly called early in our history.'' By this 
system, while the executive functions delegated 
by the people are conceived as distinct from the 
legislative and the judicial; the legislative dis- 

' Downes v. Bidwdl, 182 U. S. 244 (1901). 
' As in the Federalist (1788), 



144 Essentials of American Government 

tinct from the executive and the judicial; the 
judicial distinct from the executive and the 
legislative, "that it may be a government of 
laws (principles) not of men," yet the three 
functions cooperate as a unit, and each works 
as a check on the other. 

This nice balancing, yet cooperation of parts, 
characterizes American government whether 
local, State, or federal. 

4. The laws are made by the legislative 
power, — the Congress, the State Legislature, the 
city Council. But the Mayor, the Governor, the 
President, participates in the act by approving or 
disapproving the proposed measure; and "it is 
the province and the duty of the Court to say 
what the law is." 

5. Administration is identified in some way 
with the executive, the legislative, the judicial, — 
one, or two, or all. At the foundation are the 
people of the United States, the people of a 
State, the people of a local jurisdiction (city, 
town, borough, county, township), — who, di- 
rectly or indirectly, elect a person (or persons) 
to represent them in an office {i.e., a function) 
legislative, executive, judicial, or administrative. 

6. If the executive is malfeasant in office, he 



Principles of American Government 145 

is subject to investigation, trial, impeachment, 
conviction, removal from oflSce by operation of 
law at the instance of the Legislature. If the 
judge is malfeasant, he is subject in like manner. 
If the legislator is malfeasant, he is subject to 
investigation by his fellow legislators, — to trial 
before a Court (the judiciary), and, not least to 
retirement at the hands of the people at the 
polls. For it is the people themselves who are 
the grand "check and balance" in government, 
in America. 

7. The principle of representation includes 
all the fundamentals of government in the 
American system. Thus economy, efficiency, 
protection, peace, prosperity, — indeed all the 
interests and activities, the conditions and quali- 
ties sought in government are sought in and by 
application of this principle. 

8. Such realization of justice is sought, — for 
example : 

(1) By open, fair and frequent elections. 

(2) By limitation, by the people, of all powers 
granted by them to their representatives, — a 
limitation, or reservation of powers fully ex- 
pressed by the Tenth Amendment. 

(3) By adherence to "majority rule." 



146 Essentials of American Government 

(4) By graduating taxation according to 
resources.^ 

(5) By maintaining between the States and 
the United States, what Lincoln called "proper 
practical relations."" 

(6) By distinguishing at all times between 
permanent and temporary interests/ 

(7) By securing, maintaining, and ever exer- 
cising a morality essential to the establishing of 
justice. 

9. In order to establish justice, by and 
through a representative form of government 
such as ours, the people ordain and establish 
constitutions, enact laws, and render decisions. 

Obviously many millions of people cannot 
themselves do this, — it must be done, if at all, by 
delegates elected for the special purpose. 

10. To what extent the republican form of 
government may be carried, geographically, is 
not known. Montesquieu, the most eminent 
political writer of the eighteenth century, as- 
serted in his Spirit of Laws that a confederated 
republic (such as ours) cannot extend over a 
large area because of jealousies inevitable among 

• See the Federalist, No. XXX. 

' Last public address, April 11, 1865, Works (Century Ed.), ii-, 674. 

3 Federalist, No. LXIII, 



Principles of American Government i47 

the confederating States which will constantly 
tend to limit the extent of its jurisdiction.^ 
Madison, explaining our American system,^ 
replied fully to Montesquieu, — distinguishing 
between "a mere consolidation of States and a 
Union of States upon the principle of representa- 
tion." 

11. Whether this principle can be applied in 
a republic of the nations, a federation of the 
world, — or, as Tennyson expresses it, — "a par- 
liament of man, " is a problem which civilization 
alone can solve. 

12. At present the supreme diflSculty is the 
sovereignty of the several nations. For example, 
the sovereignty of the United States is exercised 
by its exclusive right (through the Congress) to 
coin money, or to declare war. Like sovereign 
powers are in every other nation. Were the 
nations of the earth to form a Federal Union, 
what becomes of these present sovereign powers? 
Is any nation willing and ready to surrender 
these? Is it possible to establish federal rela- 
tions between the present several sovereign 
nations and some Supreme Union of all nations, 

' The Spirit of Laws, Bk. IX., Ch. i. 
=" Federalist, No. XIV. 



148 Essentials of American Government 

— ^placing each present nation in "proper, prac- 
tical relations" (federal relations) to the World- 
Republic? 

13. The type, or model for such a republic is 
the United States to which the several nations 
would stand in such federal relations as the 
several States in the American Union stand to 
the United States.^ 

14. If ever such a World-Republic, or Empire, 
comes into existence, it will come by application 
of the principle of representation. "^ 

' This is the subject of the immense literature about a "Leagve of 
Nations." See especially vol. iv.. No. 4, August, 1921, A League of 
Nations, World Peace Foundation, 40 Mt. Vernon Street, Boston, 
Mass. Also, International Conciliation, 407 W. 117th Street, New 
York City. Especially No. 169, The Washington Conference on the 
Limitation of Armaments. 

' The Hague Tribunals, the League of Nations, the Disarmament 
Conference, all Arbitration Conferences in which a nation is a party, 
are monuments toward the realization of a world republic. The 
principles of American government are the main theme, in one form 
or another, of every publication on the subject. It might seem, at 
first thought, that all nations might federate, on the principle of 
representation, with respect to the three fundamentals mentioned by 
Jefferson: "Life, liberty, and the pursuit of happiness." This were 
easier if the several nations agreed as to these fundamentals. Differ- 
ences of race, climate, institutions, customs, law, — ideas (in brief) 
are obstacles in the way of a world-republic. Whatsoever removes, 
or tends to remove or overcome these obstacles, contributes toward 
the formation of a world-republic. An instructor may, advantage- 
ously, call attention to the facts presented by history, — facts as to 
ethics, religion, politics, law, economics, sociology, etc. Examples 
abound at the present time. 



APPENDIX 

I. A Word About the Books. 

II. The Constitution of the United States. 

III. Cases Cited. 

IV. Index. 

I. A Word About the Books 

Books on government are documents, comments on 
documents, or both. Of books strictly documentary the 
instructor or general reader may not make use. Yet 
there are notably helpful books, chiefly of the third 
group, also reprints of documents with notes and biblio- 
graphies. 

1. The Constitution and Organic Laws of the United 
States, 7 vols. Edited by Francis N. Thorpe, pubHshed 
by the Federal Government, 1909. This work reprints the 
State constitutions down to 1907; the enabling Acts for 
the States ; the Acts creating the Territories, and many 
colonial charters. It contains no comments, but gives a 
bibliography of the constitutions. The Constitution of 
the United States (available from the Government and 
accessible in many reprints) finds official interpretation 
in the "Reports" of the Supreme Court of the United 
States, — some 230 octavo volumes. The decisions of 
essential importance are compiled (usually with brief 
bibliographical notes) in several editions of (so-called) 
"leading cases," — commonly known as "Case Books" of 
which McClain's, Thayer's, Hall's, Wombaugh's, and 

149 



150 Appendix 

Boyd's are well known. The title is usually Cases on 
Constitutional Law, and the work is in one volume. 
(Thayer's in several, according to the edition.) 

Federal (and some State) documentary matter of 
great value in the study of American government is 
reprinted and edited by William Macdonald in his 
Documentary Source Book of American History, 1606- 
1898; and in his Select Documents Illustrative of the History 
of the United States 1776-1861, — both volumes amply 
supplied with bibliographies, and explanatory notes. 

Of similar editorial character is H. V. Ames's State 
Documents on Federal Relations, States and the United 
States. H. W. Preston's Documents Illustrative of Amer- 
ican History, 1606-1863, ivith Introductions and Refer- 
ences, belongs to this group of books. James D. Richard- 
son's A Compilation of the Messages and Papers of the 
Presidents, 1789-1897, 10 vols, (published by authority 
of Congress), is the available source of its kind. The 
"messages and papers" later than 1897 (but not down to 
date) have also been compiled. Richardson has also 
compiled a similar collection of C. S. A. documents. 

The treaties to which the United States is a party are 
reprinted, down to 1910, in Treaties, Conventions, Inter- 
national Acts, Protocols and Agreements Between the United 
States of America and Other Powers, 1776-1909, 2 vols., 
1776-1909, compiled by W. M. Malloy ; Senate Document, 
No. 357, 61st Congress, 2d Session; Vol. III., compiled by 
G. Charles (supplement to Senate Document, No. 357, 
1913). (Treaties since 1913 will be found in The Congres- 
sional Record of the date of the treaty.) Of books con- 
sisting essentially of comments on American Government 
(as of documents), the number is great and all which 
survive are of value. 

First among these is the Federalist (1788), essays on the 
(then) proposed Federal Government, by Hamilton, Madi- 



Appendix 151 

son, and Jay, H. C. Lodge's edition contains a critical 
essay on the authorship of the papers; P. L. Ford's edi- 
tion has a bibhography, notes, and additional documen- 
tary matter. Ford's index is of great help. 

Alexis de Tocqueville's Democracy in America, 2 vols., 
1835 (many editions, — i.e., translations from the French), 
describes the United States, its people, their government 
and institutions as they were down to the year of its 
composition. This classic work is now historical. Its 
philosophical character has long been acknowledged. 
It emphasizes {inter alia) the "town meeting." 

James Bryce's American Commonwealth, 2 vols., 1888 
(later editions; also in one volume), resembles De Toc- 
queville's work in being descriptive, philosophical, and 
readable. It was written with emphasis of the merits of 
the British, — the "Cabinet" system of representative 
government. 

Of strictly technical treatises on our national govern- 
ment (the Constitution especially), Joseph Story's Com- 
mentaries on the Constitution (1833) (later editions; a 
standard work); Thomas M. Cooley's Constitutional 
Limitations, and his General Principles of Constitutional 
Law in the United States of America (1880) (later 
editions) ; and W. M. Willoughby's American Constitu- 
tional Law, 2 vols. (1920), are the principal. 

Lalor's Cyclopcedia of Political Science, Political Econ- 
omy and United States History (3 vols. ; revised edition) is 
a treasury of information, containing information on 
all important governmental issues in our history; also 
Hart and McLaughlin's Cyclopaedia of American Govern- 
ment. 

President F. J. Goodnow's Comparative Administrative 
Law (1893, 2 vols.; edition in one volume also) and his 
American Admi7iistrative Law remain the standard 
treatises on the subject. 



152 Appendix 

The works in American history and biography are 
numerous. Of a documentary nature are the Works or 
Writings of American statesmen, comprising some 200 
volumes. The American Statesmen series consist of brief 
biographies of the most eminent public men in our 
history. The True Series of American statesmen need 
not be ignored. W. G. Sumner's Alexander Hamilton 
may be read in course with Senator Lodge's Hamilton 
of the American Statesmen series. W. B. Munro's The 
Government of American Cities also his Government of the 
United States (textbooks) are masterly works. J. P. 
Cotton's Constitutional Decisions of John Marshall (2 
vols., 1905; with notes) gives easy access to the govern- 
mental principles of the great Chief -Justice. 

American history supplies innumerable illustrations 
and examples of the principles of American government 
applied. There is no one work, of an historical nature, 
which narrates the applications of these principles of 
government during the whole life of the Nation. The 
references by editors of our important state papers (docu- 
ments) usually indicate where detailed narratives con- 
cerning the matter may be found. Bancroft's histories 
stop with the inauguration of Washington; Hildreth, 
with the Missouri Compromise, 1492-1820; McMaster, 
1787-1861, with the Civil War; Schouler, 1783-1876, with 
the Centennial; Rhodes, 1850-1888, with Cleveland's 
Administration; Adams, 1801-1817, with the accession 
of Monroe. There are special histories of the making of 
the Constitution [Bancroft, Curtis (both strictly of the 
formation of the Constitution, — though Curtis's (last 
edition) includes some later questions) ; Thorpe (narrates 
the constitutional history of the United States to the 
adoption of the Fifteenth Amendment — see also his Con- 
stitutional History of the American People, 1776-1850, 2 
vols., a narrative of State Constitutions and govern- 



Appendix i53 

ment]. For histories of issues, movements, particular 
events, consult Hart's Guide to American History (last 
edition). 

Of great value are current publications (newspapers, 
magazines, pamphlets, &c.) such as The American Political 
Science Review (each number contains valuable -bibli- 
ography of current publications in the field of govern- 
ment); The Annals of the American Academy; The North 
American Review; The Political Science Quarterly; the 
Law Journals (Harvard, Yale Review, Boston, American 
Bar Association Journal; Journal of International Law, 

&c.).' 

Of primary value in international law studies is 
Scott's Cases on International Law. Relevant articles in 
the encyclopaedias (American, Britannica) usually con- 
clude with a bibliography leading to quite all the authori- 
ties. 

In the footnotes in the present volume references and 
citations are made to the principal writings on the subject 
in hand. The subject "government" is quite inexhaust- 
ible. In the present volume American government is the 
chief theme and of this government, federal. State, and 
local (city) the essentials, or fundamental principles are 
considered. Books of special value in the study of 
American government, include, — Alexander Johnston's 
(Edited) Representative American Orations, which illus- 
trate American Political History (new edition, 4 volumes, 
by J. A. Woodburn) ; Charles W. Bacon and F. S. More's 

I The instructor may advantageously bring to the class The Con- 
gressional Record or the State Legislative Record— in order to present 
the course of important current discussions. The Congressional 
Record contains sooner or later some account of quite every interest 
of the American people. Decisions of the Supreme Court of the Uni- 
ted States are available shortly after they are rendered; new "Trea- 
ties" are printed in The Congressional Record, as they are made. 



154 Appendix 

American Plan of Government; J. H. Dougherty's Elec- 
toral System of the United States, and Power of the Federal 
Judiciary Over Legislation; the Lincoln-Douglas De- 
bates (various editions; see Putnam's); A. H. Snow's 
The American Philosophy of Government; E. G. Scott's 
Constitutional Liberty; William D. Foulke's Fighting the 
Spoilsmen (concerning the Civil Service); J. A. Wood- 
burn's The American Republic and lis Government, and 
Political Parties and Party Problems in the United States; 
and the Writings or Works of American Statesmen, — 
notably Hamilton's and Jefferson's. (Hamilton edited 
by Lodge; Jefferson, by Ford). M. M. Miller's American 
Debates; E. G. Elliott's Biographical Story of the Constitu- 
tion; O. S. Straus's Origin of Republican Government in 
the United States. 

After all, the measure of success in class rests with the 
instructor. To him or her we there at last come. The 
living voice surpasses the mere textbook in informing 
power. The knowledge and the spirit of the instructor 
determine the character of the work done by the class 
and largely fix the boundaries as well as the standards of 
thinking by the class, at the time, and later. The rule 
should be Multum, not Multa. 



APPENDIX II 

THE 
CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA 

(Compared with the Original in the Department 
OF State) 

WE THE PEOPLE' of the United States, in Order to 
form a more perfect Union, establish Justice, insure 
domestic TranquiHty, provide for the common defence, 
promote the general Welfare, and secure the Blessings 
of Liberty to ourselves and our Posterity, do ordain and 
establish this Constitution for the United States of 
America. 

ARTICLE I. 
Section 1. 

1. All legislative Powers herein granted shall be vested 
in a Congress of the United States, which shall consist of 
a Senate and House of Representatives. 

Section 2. 
1. The House of Representatives shall be composed of 
Members chosen every second Year by the People of the 
' In the original the clauses are not numbered, nor is there any 
title to the document. It begins, " We the People." 

155 



156 Appendix 

several States, and the Electors in each State shall have 
the Qualifications requisite for Electors of the most 
numerous Branch of the State Legislature. 

2. No Person shall be a Representative who shall not 
have attained to the Age of twenty -five Years, and been 
seven Years a Citizen of the United States, and who shall 
not, when elected, be an Inhabitant of that State in 
which he shall be chosen. 

3. ^Representatives and direct Taxes shall be appor- 
tioned among the several States which may be included 
within this Union, according to their respective Numbers, 
which shall be determined by adding to the whole Num- 
ber of free Persons, including those bound to Service for a 
Term of Years, and excluding Indians not taxed, three 
fifths of all other Persons. The actual Enumeration shall 
be made within three Years after the first Meeting of the 
Congress of the United States, and within every subse- 
quent Term of ten Years, in such Manner as they shall by 
Law direct. The Number of Representatives shall not ex- 
ceed one for every thirty Thousand, but each State shall 
have at Least one Representative ; and until such enumer- 
ation shall be made, the State of New Hampshire shall be 
entitled to chuse three, Massachusetts eight, Rhode 
Island and Providence Plantations one, Connecticut five, 
New York six. New Jersey four, Pennsylvania eight, 
Delaware one, Maryland six, Virginia ten. North Carolina 
five, South Carolina five, and Georgia three. 

4. When vacancies happen in the Representation 
from any State, the Executive Authority thereof shall 
issue Writs of Election to fill such Vacancies. 

5. The House of Representatives shall chuse their 
Speaker and Other Officers; and shall have the sole Power 
of Impeachment. 

^ See Amendments XIII., XIV., XV.. XVI. 



Appendix i57 

Section 3. 

1. ^The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legisla- 
ture thereof, for six Years; and each Senator shall have 
one Vote. 

2. Immediately after they shall be assembled in 
Consequence of the first Election, they shall be divided 
as equally as may be into three Classes. The Seats of 
the Senators of the first Class shall be vacated at the 
Expiration of the second Year, of the second Class at 
the Expiration of the fourth Year, and of the third Class 
at the Expiration of the sixth Year; so that one third 
may be chosen every second Year; and if Vacancies 
happen by Resignation or otherwise, during the Recess of 
the Legislature of any State, the Executive thereof may 
make temporary Appointments until the next Meeting 
of the Legislature, which shall then fill such Vacancies. 

3. No Person shall be a Senator who shall not have 
attained to the Age of thirty Years, and been nine Years a 
Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall 
be chosen. 

4. The Vice-President of the United States shall be 
President of the Senate, but shall have no Vote, unless 
they be equally divided. 

5. The Senate shall chuse their other Officers, and 
also a President pro tempore in the Absence of the Vice- 
President, or when he shall exercise the Office of President 
of the United States. 

6. The Senate shall have the sole Power to try all 
Impeachments. When sitting for that Purpose, they 
shall be on Oath or Affirmation. When the President of 
the United States is tried, the Chief Justice shall preside: 

' See Amendment XVII. 



158 Appendix 

And no Person shall be convicted without the Concur- 
rence of two thirds of the Members present. 

7. Judgment in Cases of Impeachment shall not 
extend further than to removal from Office, and dis- 
qualification to hold and enjoy any Office of honor. 
Trust, or Profit under the United States: but the Party 
convicted shall, nevertheless, be liable and subject to 
Indictment, Trial, Judgment and Punishment, according 
to Law. 

Section 4. 

1. The Times, Places and Manner of holding Elections 
for Senators and Representatives, shall be prescribed in 
each State by the Legislature thereof; but the Congress 
may at any time by Law make or alter such Regulations, 
except as to the Places of chusing Senators. 

2. The Congress shall assemble at least once in every 
Year, and such Meeting shall be on the first Monday in 
December, unless they shall by Law appoint a different 
Day. 

Section 5. 

1. Each House shall be the Judge of the Elections, 
Returns and Qualifications of its own Members, and a 
Majority of each shall constitute a Quorum to do Busi- 
ness; but a smaller Number may adjourn from day to 
day, and may be authorized to compel the Attendance of 
absent Members, in such Manner, and under such 
Penalties as each House may provide. 

2. Each House may determine the Rules of its Pro- 
ceedings, punish its Members for disorderly Behavior, 
and, with the Concurrence of two thirds, expel a Member. 

3. Each House shall keep a Journal of its Proceedings, 
and from time to time publish the same, excepting such 
Parts as may in their Judgment require Secrecy; and the 



Appendix 159 

Yeas and Nays of the Members of either House on any 
question shall, at the Desire of one fifth of those Present, 
be entered on the Journal. 

4. Neither House, during the Session of Congress, 
shall, without the Consent of the other, adjourn for more 
than three days, nor to any other Place than that in 
which the two Houses shall be sitting. 

Section 6. 

1. The Senators and Representatives shall receive a 
Compensation for their Services, to be ascertained by 
Law, and paid out of the Treasury of the United States. 
They shall in all Cases, except Treason, Felony and 
Breach of the Peace, be privileged from Arrest during 
their Attendance at the Session of their respective Houses 
and in going to and returning from the same; and for any 
Speech or Debate in either House, they shall not be 
questioned in any other Place. 

2. No Senator or Representative shall, during the 
Time for which he was elected, be appointed to any civil 
OflSce under the Authority of the United States, which 
shall have been created, or the Emoluments whereof 
shall have been increased during such time; and no 
Person holding any Office under the United States, shall 
be a member of either House during his Continuance in 
Office. 

Section 7. 

1. All Bills for raising Revenue shall originate in the 
House of Representatives; but the Senate may propose or 
concur with Amendments as on other Bills. 

2. Every Bill which shall have passed the House of 
Representatives and the Senate, shall, before it become a 
Law, be presented to the President of the United States; 
If he approve he shall sign it, but if not he shall return it, 



i6o Appendix 

with his Objections, to that House in which it shall have 
originated, who shall enter the Objections at large on 
their Journal, and proceed to reconsider it. If after such 
Reconsideration two thirds of that House shall agree to 
pass the Bill, it shall be sent, together with the Objec- 
tions, to the other House, by which it shall likewise be 
reconsidered, and if approved by two thirds of that House 
it shall become a Law. But in all such Cases the Votes 
of both Houses shall be determined by Yeas and Nays, 
and the Names of the Persons voting for and against 
the Bill shall be entered on the Journal of each House 
respectively. If any Bill shall not be returned by the 
President within ten Days (Sundays excepted) after it 
shall have been presented to him, the Same shall be a 
Law, in like Manner as if he had signed it, unless the 
Congress by their Adjournment prevent its Return, in 
which Case it shall not be a Law. 

8. Every Order, Resolution, or Vote to which the 
Concurrence of the Senate and House of Representatives 
may be necessary (except on a question of Adjournment), 
shall be presented to the President of the United States; 
and before the Same shall take Effect, shall be approved 
by him, or being disapproved by him, shall be repassed 
by two thirds of the Senate and House of Representatives, 
according to the Rules and Limitations prescribed in the 
Case of a Bill. 

Section 8. 

1. The Congress shall have Power to lay and collect 
Taxes, Duties, Imposts and Excises, to pay the Debts 
and provide for the common Defence and general Welfare 
of the United States; but all Duties, Imposts and Excises 
shall be uniform throughout the United States; 

2. To borrow Money on the credit of the United 
States; 



Appendix i6i 

3. To regulate Commerce with foreign Nations, and 
among the several States, and with the Indian Tribes; 

4. To estabhsh a uniform Rule of Naturalization, and 
uniform Laws on the subject of Bankruptcies throughout 
the United States; 

5. To coin Money, regulate the Value thereof, and of 
foreign Coin, and fix the Standard of Weights and 
Measures; 

6. To provide for the Punishment of counterfeiting 
the Securities and current Coin of the United States; 

7. To establish Post-OfBces and Post Roads; 

8. To promote the Progress of Science and useful Arts, 
by securing for limited Times to Authors and Inventors 
the exclusive Right to their respective Writings and 
Discoveries; 

9. To constitute Tribunals inferior to the Supreme 
Court; 

10. To define and punish Piracies and Felonies com- 
mitted on the high Seas, and Offences against the Law 
of Nations; 

11. To declare War, grant Letters of Marque and 
Reprisal, and make Rules concerning Captures on Land 
and Water; 

12. To raise and support Armies, but no Appropriation 
of Money to that Use shall be for a longer Term than 
two Years; 

13. To provide and maintain a Navy; 

14. To make Rules for the Government and Regula- 
tion of the land and naval Forces ; 

15. To provide for calling forth the Militia to execute 
the Laws of the Union, suppress Insurrections and repel 
Invasions; 

16. To provide for organizing, arming, and disciplin- 
ing the Militia, and for governing such Part of them 
as may be employed in the Service of the United States, 



i62 Appendix 

reserving to the States respectively, the Appointment 
of the Oflficers, and the Authority of training the Militia 
according to the discipline prescribed by Congress; 

17. To exercise exclusive Legislation in all Cases 
whatsoever, over such District (not exceeding ten Miles 
square) as may, by Cession of particular States, and the 
Acceptance of Congress, become the Seat of the Govern- 
ment of the United States, and to exercise like Authority 
over all Places purchased by the Consent of the Legisla- 
ture of the State in which the Same shall be, for the 
Erection of Forts, Magazines, Arsenals, dock- Yards, 
and other needful Buildings; — And 

18. To make all Laws which shall be necessary and 
proper for carrying into Execution the foregoing Powers, 
and all other Powers vested by this Constitution in the 
Government of the United States, or in any Department 
or Ofl&cer thereof. 

Section 9. 

1. The Migration or Importation of such Persons as 
any of the States now existing shall think proper to 
admit, shall not be prohibited by the Congress prior to 
the Year one thousand eight hundred and eight, but a 
Tax or duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 

2. The Privilege of the Writ of Habeas Corpus shall 
not be suspended, unless when in Cases of Rebellion or 
Invasion the public Safety may require it. 

3. No Bill of Attainder, or ex post facto Law shall be 
passed. 

4. No Capitation or other direct Tax shall be laid, 
unless in Proportion to the Census or Enumeration herein 
before directed to be taken. 

5. No Tax or Duty shall be laid on Articles exported 
from any State. 



Appendix 163 

6. No Preference shall be given by any Regulation of 
Commerce or Revenue to the Ports of one State over 
those of another: nor shall Vessels bound to, or from, one 
State, be obliged to enter, clear, or pay Duties, in another, 

7. No money shall be drawn from the Treasury, but in 
Consequence of Appropriations made by Law; and a 
regular Statement and Account of the Receipts and 
Expenditures of all public Money shall be published 
from time to time. 

8. No Title of Nobility shall be granted by the United 
States: And no Person holding any Office of Profit or 
Trust under them, shall, without the Consent of the 
Congress, accept of any present. Emolument, Office, or 
Title, of any kind whatever, from any King, Prince, or 
foreign State, 

Section 10. 

1. No State shall enter into any Treaty, Alliance, or 
Confederation; grant Letters of Marque and Reprisal; 
coin Money; emit Bills of Credit; make any Thing but 
gold and silver Coin a Tender in Payment of Debts; pass 
any Bill of Attainder, ex post facto Law, or Law impair- 
ing the Obligation of Contracts, or grant any title of 
Nobility. 

2. No State shall, without the Consent of the Congress, 
lay any Imposts or Duties on Imports or Exports, except 
what may be absolutely necessary for executing its 
inspection Laws; and the net Produce of all Duties and 
Imposts, laid by any State on Imports or Exports, shall 
be for the Use of the Treasury of the United States; and 
all such Laws shall be subject to the Revision and Con- 
troul of the Congress. 

3. No State shall, without the Consent of Congress, 
lay any Duty of Tonnage, keep Troops or Ships of War, 
in time of Peace, enter into any Agreement or Compact 



i64 Appendix 

with another State, or with a foreign Power, or Engage 
in War, unless actually invaded, or in such imminent 
Danger as will not admit of delay. 



ARTICLE II. 
Section 1. 

1. The Executive Power shall be vested in a President 
of the United States of America. He shall hold his office 
during the Term of four Years, and, together with the 
Vice-President, chosen for the same Term, be elected as 
follows : 

2. Each State shall appoint, in such manner as the 
legislature thereof may direct, a Number of Electors, 
equal to the whole Number of Senators and Representa- 
tives to which the State may be entitled in the Congress 
but no Senator or Representative, or Person holding an 
Office of Trust or Profit under the United States, shall be 
appointed an Elector. 

3. ^The Electors shall meet in their respective States, 
and vote by Ballot for two Persons, of whom one at least 
shall not be an Inhabitant of the same State with them- 
selves. And they shall make a List of all the Persons 
voted for, and of the Number of Votes for each; which 
List they shall sign and certify, and transmit sealed to 
the Seat of the Government of the United States, directed 
to the President of the Senate. The President of the 
Senate shall, in the Presence of the Senate and House of 
Representatives, open all the Certificates, and the Votes 
shall then be counted. The Person having the greatest 
number of Votes shall be the President, if such Number 
be a Majority of the whole Number of Electors appointed; 
and if there be more than one who have such a Majority, 

^ See Amendment XII. 



Appendix 165 

and have an equal Number of Votes, then the House of 
Representatives shall immediately chuse, by Ballot one 
of them for President; and if no Person have a Majority, 
then from the five highest on the List, the said House 
shall in like manner chuse the President. But in chusing 
the President, the Votes shall be taken by States, the 
Representation from each State having one vote; A 
quorum for this Purpose shall consist of a Member or 
Members from two thirds of the States, and a Majority of 
all the States shall be necessary to a Choice. In every 
Case, after the Choice of the President, the Person having 
the greatest Number of Votes of the Electors shall be the 
Vice-President. But if there should remain two or more 
who have equal Votes, the Senate shall chuse from them 
by Ballot the Vice-President. 

4. The Congress may determine the Time of chusing 
the Electors, and the day on which they shall give their 
Votes; which Day shall be the same throughout the 
United States. 

5. No Person except a natural-born Citizen, or a 
Citizen of the United States, at the time of the Adoption 
of this Constitution, shall be eligible to the Office of 
President; neither shall any Person be eligible to that 
Office who shall not have attained to the Age of thirty- 
five Years, and been fourteen Years a Resident within 
the United States. 

6. In Case of the Removal of the President from Office, 
or of his Death, Resignation, or Inability to discharge 
the Powers and Duties of the said Office, the Same shall 
devolve on the Vice-President, and the Congress may by 
Law provide for the Case of Removal, Death, Resigna- 
tion, or Inability both of the President and Vice-President 
declaring what Officer shall then act as President, and 
such Officer shall act accordingly, until the disability be 
removed, or a President shall be elected- 



1 66 Appendix 

7. The President shall, at stated Times, receive for his 
Services, a Compensation, which shall neither be In- 
creased nor diminished during the Period for which he 
shall have been elected, and he shall not receive within 
that Period, any other Emolument from the United 
States, or any of them. 

8. Before he enter on the Execution of his Office he 
shall take the following Oath or Affirmation: — "I do 
solemnly swear (or affirm) that I will faithfully execute 
the Office of President of the United States, and will, 
to the best of my Ability, preserve, protect, and defend 
the Constitution of the United States." 

Section 2. 

1. The President shall be Commander in Chief of the 
Army and Navy of the United States, and of the Militia 
of the several States, when called into the actual Service 
of the United States; he may require the Opinion, in 
writing, of the principal Officer in each of the Executive 
Departments, upon any Subject relating to the Duties of 
their respective Offices, and he shall have Power to grant 
Reprieves and Pardons for Offences against the United 
States, except in Cases of Impeachment. 

2. He shall have Power, by and with the Advice and 
Consent of the Senate, to make Treaties, provided two 
thirds of the Senators present concur; and he shall 
nominate, and by and with the Advice and Consent of 
the Senate, shall appoint Ambassadors, other Public 
Ministers, and Consuls, Judges of the Supreme Court, 
and all other Officers of the United States, whose Ap- 
pointments are not herein otherwise provided for, and 
which shall be established by Law : but the Congress may 
by Law vest the Appointment of such inferior Officers, as 
they think proper, in the President alone, in the Courts 
of Law, or in the Heads of Departments. 



Appendix 167 

3. The President shall have Power to fill up all Vacan- 
cies that may happen during the Recess of the Senate, 
by granting Commissions which shall expire at the End 
of the next Session. 

Section 3. 

1. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend 
to their Consideration such Measures as he shall judge 
necessary and expedient; he may, on extraordinary 
Occasions, convene both Houses, or either of them, and 
in Case of Disagreement between them, with Respect 
to the time of Adjournment, he may adjourn them to 
such Time as he shall think proper; he shall receive Am- 
bassadors and other public Ministers; he shall take Care 
that the Laws be faithfully executed, and shall com- 
mission all the Officers of the United States. 

Section 4. 

1. The President, Vice-President, and all civil Officers 
of the United States, shall be removed from Office on 
Impeachment for, and Conviction of. Treason, Bribery, 
or other high Crimes and Misdemeanors. 

ARTICLE III. 

Section 1. 

1. The judicial Power of the United States shall be 
vested in one Supreme Court, and in such inferior Courts 
as the Congress may, from time to time, ordain and 
establish. The Judges, both of the supreme and inferior 
Courts, shall hold their Offices during good Behavior, and 
shall, at stated Times, receive for their Services a Com- 
pensation, which shall not be diminished during their 
Continuance in Office. 



1 68 Appendix 

Section 2. 

1. ^The judicial Power shall extend to all Cases, in 
Law and Equity, arising under this Constitution, the 
Laws of the United States, and Treaties made, or which 
shall be made, under their Authority; — to all Cases 
affecting Ambassadors, other public Ministers and 
Consuls; — to all Cases of admiralty and maritime Juris- 
diction; to Controversies to which the United States 
shall be a Party; — to Controversies between two or more 
States; — between a State and Citizens of another State; 
— between Citizens of different States, — between Citi- 
zens of the same State claiming Lands under Grants of 
different States, and between a State, or the Citizens 
thereof, and foreign States, Citizens, or Subjects. 

2. In all Cases affecting Ambassadors, other public 
Ministers and Consuls, and those in which a State shall 
be a Party, the Supreme Court shall have original Juris- 
diction. In all the other Cases before mentioned, the 
Supreme Court shall have appellate Jurisdiction, both as 
to Law and Fact, with such Exceptions, and under such 
regulations as the Congress shall make. 

3. The Trial of all Crimes, except in Cases of Impeach- 
ment, shall be by Jury; and such Trial shall be held in the 
State where the said Crimes shall have been committed; 
but v/hen not committed within any State, the Trial 
shall be at such Place or Places as the Congress may by 
Law have directed. 

Section 3. 

1. Treason against the United States, shall consist 
only in levying War against them, or in adhering to their 
Enemies, giving them Aid and Comfort. No Person shall 
be convicted of Treason unless on the Testimony of two 

' See Amendment XI. 



Appendix 169 

Witnesses to the same overt Act, or on Confession in 
open Court. 

2. The Congress shall have Power to declare the 
Punishment of Treason, but no Attainder of Treason shall 
work Corruption of Blood, or Forfeiture except during 
the Life of the Person attained. 



ARTICLE IV. 

Section 1. 

1. Full Faith and Credit shall be given in each. State 
to the public Acts, Records, and judicial Proceedings of 
every other State. And the Congress may by general 
Laws prescribe the manner in which such Acts, Records, 
and Proceedings shall be proved, and the Effect thereof. 

Section 2. 

1. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several 
States. 

2. A Person charged in any State with Treason, 
Felony, or other Crime, who shall flee from Justice, and 
be found in another State, shall on Demand of the execu- 
tive Authority of the State from which he fled, be de- 
livered up to be removed to the State having Jurisdiction 
of the Crime. 

3. 'No Person held to Service or Labour in one State, 
under the Laws thereof, escaping into another, shall, in 
Consequence of any Law or Regulation therein, be dis- 
charged from such Service or Labour, but shall be de- 
livered up on Claim of the Party to whom such Service 
or Labour may be due. 

^ See Amendments XIII.. XIV., XV. 



170 Appendix 

Section 3. 

1. New States may be admitted by the Congress into 
this Union; but no new State shall be formed or erected 
within the Jurisdiction of any other State; nor any State 
be formed by the Junction of two or more States, or 
Parts of States, without the Consent of the Legislatures 
of the States concerned as well as of the Congress. 

2. The Congress shall have Power to dispose of and 
make all needful Rules and Regulations respecting the 
Territory or other Property belonging to the United 
States; and nothing in this Constitution shall be so 
construed as to Prejudice any Claims of the United 
States, or of any particular State. 

Section 4. 

1. The United States shall guarantee to every State 
in this Union a Republican Form of Government, and 
shall protect each of them against Invasion; and on 
Application of the Legislature, or of the Executive (when 
the Legislature cannot be convened) against domestic 
Violence. 

ARTICLE V. 

1. The Congress, whenever two thirds of both Houses 
shall deem it necessary, shall propose Amendments to 
this Constitution, or, on the Application of the Legisla- 
tures of two thirds of the several States, shall call a 
Convention for proposing Amendments, which, in either 
Case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, when ratified by the Legislatures of 
three fourths of the several States, or by Conventions 
in three fourths thereof, as the one or the other Mode of 
Ratification may be proposed by the Congress; Provided 



Appendix 171 

that no Amendment which may be made prior to the 
Year one thousand eight hundred and eight shall in any 
Manner affect the first and fourth Clauses in the Ninth 
Section of the first Article; and that no State, without 
its Consent, shall be deprived of its equal Suffrage in 
the Senate. 

ARTICLE VI. 

1. All Debts contracted and Engagements entered 
into, before the Adoption of this Constitution, shall be as 
valid against the United States under this Constitution, 
as under the Confederation. 

2. This Constitution, and the Laws of the United 
States which shall be made in pursuance thereof; and all 
Treaties made, or which shall be made, under the Author- 
ity of the United States, shall be the supreme Law of 
the Land; and the Judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of any 
State to the Contrary notwithstanding. 

3. The Senators and Representatives before mentioned, 
and the Members of the several State Legislatures, and 
all executive and judicial Officers, both of the United 
States and of the several States, shall be bound by Oath 
or Affirmation, to support this Constitution; but no 
religious Test shall ever be required as a Qualification 
to any Office or public Trust under the United States. 

ARTICLE VII. 

1. The Ratification of the Conventions of nine States, 
shall be sufficient for the Establishment of this Constitu- 
tion between the States so ratifying the same. 

Done in Convention by the 
Unanimous Consent of the 



172 Appendix 

^States present the Seventeentli 
Day of September in the Year 
of our Lord one thousand seven 
hundred and Eighty seven and 
of the Independence of the 
United States of America the 
Twelfth In Witness whereof 
We have hereunto subscribed 
our Names, 

G:'WASHINGTON— Prmdi 
and deputy from Virginia. 
Attest William Jackson Secretary. 

New Hampshire: 
John Langdon 
Nicholas Gilman 

Massachusetts: 

Nathaniel Gorham 
Rufus King 

Connecticut: 

Wm: Saml. Johnson 
Roger Sherman 

New York: 

Alexander Hamilton 

^ The word, "the," being interlined between the seventh and 
eighth Lines of the first Page, The Word "Thirty" being partly 
written on an Erazure in the fifteenth Line of the first Page, The 
Words "is tried" being interlined between the thirty-second and 
thirty-third Lines of the first Page and the Word "the" being inter- 
lined betv^een the forty-third and forty-fourth Lines of the second 
Page. 

[Note by Department of State: The interlined and rewritten 
words mentioned in the above explanation, are in this edition, printed 
in their proper places in the text.] 



Appendix i73 



New Jersey: 

Wil : Livingston 
David Brearley 
Wm. Paterson 
Jona: Dayton 

Pennsylvania: 
B Franklin 
Thomas Mifflin 
Robt. Morris 
Geo. Clymer 
Thos. Fitz Simons 

Jared Ingersoll 
James Wilson 
Gouv Morris 

Delaware: 

Geo: Read 

Gunning Bedford jun 
John Dickinson 
Richard Bassett 
Jaco: Broom 

Maryland: 

James McHenry 

Dan of St. Thos. Jenifer 

Danl Carroll 

Virginia: 

John Blair — 
James Madison Jr. 

North Carolina: 
Wm: Blount 
Richd. Dobbs Spaight 
Hu Williamson 



174 Appendix 

South Carolina: 
J. Rutledge 

Charles Cotesworth Pinckney 
Charles Pinckney 
Pierce Butler 

Georgia: 

William Few 
Abr Baldwin 

[Articles in Addition to and Amendment of the Con- 
stitution of the United States of America, Proposed by 
Congress and Ratified by the Legislatures of the several 
States, Pursuant to the Fifth Article of the Constitution.] 

(ARTICLE I.) 

Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof 
or abridging the freedom of speech, or of the press; or 
the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances, (1789) 

(ARTICLE 11.) 

A well-regulated Militia, being necessary to the 
security of a free State, the right of the people to keep 
and bear Arms, shall not be infringed. (1789) 

(ARTICLE III.) 

No Soldier shall, in time of peace, be quartered in any 
house, without the consent of the Owner, nor, in time of 
war, but in a manner to be prescribed by law. (1789) 

(ARTICLE IV.) 

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 



Appendix i75 

and seizures, shall not be violated, and no Warrants shall 
issue, but upon probable cause, supported by Oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized. (1789) 

(ARTICLE V.) 

No person shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in 
the land or naval forces, or in the Militia, when in actual 
service in time of War or public danger; nor shall any 
person be subject for the same offence to be twice put in 
jeopardy of life or limb; nor shall be compelled in any 
Criminal Case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process 
of law; nor shall private property be taken for public use, 
without just compensation. (1789) 

(ARTICLE VI.) 

In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall have 
been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the 
witnesses against him; to have compulsory process for 
obtaining Witnesses in his favor, and to have the as- 
sistance of Counsel for his defence. (1789) 

(ARTICLE VII.) 

In suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury 
shall be preserved, and no fact tried by a jury shall be 



176 Appendix 

otherwise re-examined in any Court of the United States, 
than according to the rules of the common law. (1789) 

(ARTICLE VIII.) 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

(1789) 
(ARTICLE IX.) 

The enumeration in the Constitution, of certain rights, 
shall not be construed to deny or disparage others re- 
tained by the people. (1789) 

(ARTICLE X.) 

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people. (1789) 

(ARTICLE XL) 

The Judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States 
by Citizens of another State, or by Citizens or Subjects 
of any Foreign State. (1798) 

(ARTICLE XII.) 

Section 1. 

The Electors shall meet in their respective States, and 
vote by ballot for President and Vice-President, one of 
whom, at least, shall not be an inhabitant of the same 
State with themselves; they shall name in their ballots 
the person voted for as President, and in distinct ballots 
the person voted for as Vice-President; and they shall 
make distinct lists of all persons voted for as President, 



Appendix 177 

and of all persons voted for as Vice-President, and of the 
number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of government 
of the United States, directed to the President of the 
Senate; — the President of the Senate shall, in the presence 
of the Senate and House of Representatives, open all the 
certificates and the votes shall then be counted; — The 
person having the greatest number of votes for President 
shall be the President, if such number be a majority of 
the whole number of Electors appointed; and if no person 
have such majority, then from the persons having the 
highest numbers not exceeding three on the list of those 
voted for as President, the House of Representatives shall 
choose immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by 
States, the representation from each State having one 
vote; a quorum for this purpose shall consist of a member 
or members from two thirds of the States, and a majority 
of all the States shall be necessary to a choice. And if 
the House of Representatives shall not choose a Presi- 
dent whenever the right of choice shall devolve upon 
them, before the fourth day of March next following, 
then the Vice-President shall act as President, as in the 
case of the death or other constitutional disability of the 
President. The person having the greatest number of 
votes as Vice-President shall be the Vice-President, if 
such number be a majority of the whole number of 
Electors appointed, and if no person have a majority, 
then from the two highest numbers on the list, the Senate 
shall choose the Vice-President; a quorum for the purpose 
shall consist of two thirds of the whole number of Sena- 
tors, a majority of the whole number shall be necessary 
to a choice. But no person constitutionally ineligible to 
the office of President shall be eligible to that of Vice- 
President of the United States. (1804) 



178 Appendix 

(ARTICLE XIII.) 

Section 1. 

Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall have been 
duly convicted, shall exist within the United States, or 
any place subject to their jurisdiction. 

Section 2. 

Congress shall have power to enforce this article by 
appropriate legislation. (1865) 

(ARTICLE XIV.) 

Section 1. 

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person v/ithin its jurisdiction the equal 
protection of the laws. 

Section 2. 

Representatives shall be apportioned among the 
several States according to their respective numbers, 
counting the whole number of persons in each State, 
excluding Indians not taxed. But when the right to vote 
at any election for the choice of electors for President and 
Vice-President of the United States, Representatives in 
Congress, the Executive and Judicial officers of a State, 
or the members of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty- 
one years of age, and citizens of the United States, or in 



Appendix i79 

any way abridged, except for participation in rebellion, 
or other crime, the basis of representation therein shall 
be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male 
citizens twenty-one years of age in such State. 

Section 3. 

No person shall be a Senator or Representative in 
Congress, or elector of President and Vice-President, or 
hold any office, civil or military, under the United States, 
or under any State, who, having previously taken an 
oath, as a member of Congress, or as an officer of the 
United States, or as a member of any State Legislature, 
or as an executive or judicial officer of any State, to 
support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof. But 
Congress may by a vote of two thirds of each House, 
remove such disability. 

Section 4. 

The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment 
of pensions and bounties for services in suppressing 
insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume 
or pay any debt or obligation incurred in aid of insurrec- 
tion or rebellion against the United States, or any claim 
for the loss or emancipation of any slave; but all such 
debts, obligations and claims shall be held illegal and 
void. 

Section 5. 

The Congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. (1868) 



i8o Appendix 

(ARTICLE XV.) 
Section 1. 

The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of 
servitude. 

Section 2. 

The Congress shall have power to enforce this article 
by appropriate legislation. (1870) 

(ARTICLE XVI.) 

The Congress shall have power to lay and collect taxes 
on incomes from whatever source derived, without 
apportionment among the several States and without 
regard to any census or enumeration. (1913) 

(ARTICLE XVII.) 

Section 1. 

The Senate of the United States shall be composed of 
two Senators from each State, elected by the people 
thereof, for six years; and each Senator shall have one 
vote. The Electors in each State shall have the qualifica- 
tions requisite for Electors of the most numerous branch 
of the State Legislature. 

Section 2. 

When vacancies happen in the representation of any 
State in the Senate, the executive authority of such State 
shall issue writs of election to fill such vacancies: Pro- 
vided, That the Legislature of any State may empower 
the executive thereof to make temporary appointments 
until the people fill the vacancies by election as the 
Legislature may direct. 



Appendix i8i 

Section 3. 

This amendment shall not be construed as to affect 
the election or term of any Senator chosen before it 
becomes valid as part of the Constitution. (1913) 

(ARTICLE XVIII.) 

Section 1. 

After one year from the ratification of this article the 
manufacture, sale, or transportation of intoxicating 
liquors within, the importation thereof into, or the ex- 
portation thereof from the United States and all territory 
subject to the jurisdiction thereof for beverage purposes 
is hereby prohibited. 

Section 2. 

The Congress and the several States shall have con- 
current power to enforce this article by appropriate 
legislation. 

Section 3. 

This article shall be inoperative unless it shall have 
been ratified as an amendment to the Constitution by 
the Legislatures of the several States, as provided in the 
Constitution, within seven years from the date of the 
submission hereof to the States by the Congress. (1920) 

(ARTICLE XIX.) 

Section 1. 

The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on account of sex. 

Section 2. 

Congress shall have power to enforce this article by 
appropriate legislation. (1920) 



CASES CITED 



American Insurance Co. v. Cen- 
ter, 1 Peters 511 (1828), 31 



Blake v. McClung, 172 U. S. 
239 (1898). 45 



Chisholm v. Georgia, 2 Dallas 

419 (1793), 12 
Civil Rights Cases, 109 U. S. 3 

(1883), 45_ 
Cohens v. Virginia, 6 Wheaton 

387 (1821), 27, 98 



D 



Dorr V. U. S., 195 U. S. 138 

(1904), 45 
Downes v. Bidwell, 182 U. S. 

244 (1901), 45, 48, 143 
Dred Scott v. Sanford, 19 

Howard 393 (1857), 12 

E 

Ex parte Siebold, 100 U. S. 371 
(1879), 34 

G 

Gaines v. Thompson, 7 Wallace 

347, 110 
Georgia v. Stanton, 6 Wallace 

57, 110 

H 



Havenstein v. Lynhaven, 100 
U. S. 483 (1879), 45 



Hawaee v. Monkish!, 190 U. S. 

197 (1903), 45 
Head Money Cases, 112 U. S. 

580 (1884), 136 
Honer v. Yaker, 9 Wallace 32 

(1869), 136 
Hooe V. Jamieson, 166 U. S. 395 

(1897), 45 



Jiiillard v. Greenman, 110 U. S. 
421 (1884), 33 



Lascelles v. Georgia, 148 U. S. 

537 (1893), 45 
Luther v. Borden, 7 Howard 1 

(1848), 25 

M 

37 Maine 29, 104 

Marbury v. Madison, 1 Cranch 

137 (1803), 15, 28, 60, 67, 98, 

110 
8 Mass. 171, 104 
Minor iJ. Happersett, 21 Wallace 

182 (1874), 25 
Mississippi v. Johnson, 4 Wallace 

475, 110 
McCulloch V. Maryland, 4 

Wheaton 316 (1819), 5, 8, 9, 

36 

N 

New Orleans v. Paine, 147 U. S. 
261, 122 



183 



i84 



Cases Cited 



o 



Ohio and Mississippi R. R. Co. 
V. Wheeler, 1 Black 286 

(1861), 45 



Paul V. Virginia, 8 Wallace 168 
(1868), 45 

People, The, ex rel, the Attorney- 
General V. Gerke, 5 California 
381 (1855) 136 



Slaughter House Cases, 16 
Wallace 35 (1872), 45 

St. Louis and San Francisco 
R. R. Co. V. James, 161 U. S. 
^45 (1896), 45 



Texas v. White, 7 Wallace 700 
(1868), 16, 25 



Trustees of Dartmouth College, 
V. Woodward, 4 Wheaton 518 
(1819), 14, 79 

Twining v. State of New Jersey, 
211 U. S. 78 (1908), 45 



U 



U. S. V. Blaine, 139 U. S. 306, 

110 
U. S. V. Black, 128 U. S. 40, 110 
U. S. V. Cruikshank, 92 U. S. 

542 (1872), 45 
U. S. V. Ju Toy, 198 U. S. 253 

(1905) 45 
U. S. V. Stanley,109 U. S.3(1883), 

14 
U. S. V. Windom, 137 U. S. 636, 

110 
U. S. V. Wong Kim Ark, 169 

U. S. 649 (1898) 45 



Yick Wo V. Hopkins 118, 356 
(1886), 7 



INDEX 



Adams, Samuel, 127 
Adaptability of the American 

system, 28 
Administration, 7, 9, 32, 144 
Administrative, limited, 30; the, 

Ch. XI defined, 107; law 

(bibliography), 114 
Agency, political, see Agents 
Agents, 6, 21, 29, 37, 62, 76, 82 
Agriculture, Department, 109 
Alabama, constitution, 128 
Alaska, 142 
Alderman's Court, 103 
Aliens (case of Yaker), 136; law 

of, 45 
Amendment XVI, 7; XIII, 12; 

XIV, XV, 13; X, 36, 145; X, 64; 

XV, 80 

American Bar Association Jour- 
nal, 8 

American Commonwealth, The, 
see Bryce 

American Government, the New, 
38, 111 

American Government and 
Politics, 39 

American Judiciary, The, 39 

American History, Documentary 
Source Book of, 39 

American Legislatures and Legis- 
lation, 87 

Americanization, 32 

Appeals, 97 

Apportionment, 18, 71, 74 

Aristotle, 76 

Arizona, constitution, 128 

Argument court, 103 

Athens, 47 

Atterbury, Bishop, 114 

Attorney- General, 108 



B 



Baker, R. S., 8 

Baldwin, Simeon E., 39, 106 

Ballot, 120 

Bancroft, George, 68 

Banking Department, 112 

Barnett, James D., 82 

Beard, Charles A., American 

Government and Politics, 39; 

Documents, etc., by Beard and 

Schultz, 82 
Beecher, Henry Ward, 131 
Benton, Thomas H., 80 
Beveridge, Life of Marshall, 8, 

79 
Bible, 32 
Bibliography (books), 149-154. 

Appendix I 
Bibliography of the Constitution, 

68 
Bill of Rights, 7, 35 
Books (bibliography), 149-154. 

Appendix I 
Boston, 24 
Boston University Law Review, 

79 
Bramhall, F. D., 86 
Bryce, James, 6, 30, 83, 39, 93, 

106, 123, 131 
Budget, 87 
Burr, Aaron, 77; Hamilton-Burr 

duel, 131 



Cabinet, the, 5, 15; organization. 

108, 109 
California, administrative code 

of, 114 
Campaign, the, 118 
Canals, Department, 112 



185 



1 86 



Index 



Candidates, 117, 118 

Carlyle, Thomas, 90 

Carriers, common, 125 

Cases on International Law, 140 

Charities, 55 

Charities, Department, 112 

Charter ("home rule"), 62 et 
seq.; as privileges, 92 

" Checks and balances, " 143, 145 

Chicago, 24 

Circuit courts, 100 

Circuit judges (Florida), 20 

Cities, Ch. VI; U. S. Constitu- 
tion not made for, 48 

Citizen, the, Ch. V; service of, 
43; law cases, 45 

Citizenship, dual, 42; law of, 45 

Civics, philology of, 47 

Civil Court, 103 

Civil rights, 40 

Civil Rights Bill, 14 

Civil service, 110, 111 

Cleveland, Grover, President, 121 

Coalition cabinet, 115, 116 

Coalition, 115, 116 

Commentaries on the Constitution 
of the United States, 68 

Commerce, Department, 109 

Commissioners (State), 112; 
County. 23, 112 

Common Sense, 130 

Commonwealth, the American, 
see Bryce 

Communism, 3 

Comparative Administrative Law, 
151 

Congress, power of, 14, 64, 65 

Constituency, 126 

Constitution (State), 6; con- 
forms to the federal, 19 

Constitution (U. S.), 4. 5; for 
what made, 16; prescribes, C3; 
"Bibliography" of, 68; inter- 
national law, part of, 135; 
text, see Appendix II 

Constitutional, 62 

Constitutional Decisions of John 
Marshall, 68 

Constitutional History of the 
United States, 30. 68 

Constitutional Law of the United 
States, The, 68 



Cooley, Thomas M., 39, 68 

Coordination of parts (func- 
tions), 68 

Cooporation, public, 17; county 
a, 23; a district as, 75; De- 
partment, 112 

Cotton, J. P., 69, 106 

Council, common, select, 51 

County, 23; commissioners, 23; 
judges, 23; poor of, 24; officials, 
24 

Court, inferior, 65; see Supreme 
Court 

Courts of law, constitutional, 12, 
15; County, 20; functions of, 
67, 105; kinds of, 99, 100; of 
First Instance, 103; of Record, 
104, 105 

Criminal, 103 

Curtis, George T., 68 



D 



Dartmouth College Code, 79 

De Civitate Dei, 141 

Declaration of Independence, 
31,91 

Declarations of Rights, 35 

Delaware, constitution, 128 

Delegates, 116, 146 

Deming, H., 60 

Democracy, 4 

Democracy and the Organization 
of Political Parties, 123 

Democratic Party, 117 

Departments (State govern- 
ment), 112; Ch. XI 

De Witt, D. M., 95 

Disarmament Conference, 130, 
137, 148 

District, Congressional, 18, 71; 

State, Presidential, 20; assembly, 
71; county senatorial, 75 

Divorce, 79 

Douglas, Stephen A., 129 

Dred Scott, 12 

Due process of law, 97, 106 



E 



Education Department, 112 
Election, 5; laws, 55, 120; of 



Index 



187 



Election — Continued 

legislators, 71; of public offi- 
cials, 113; IJ. S. utilizes State 
machinery, 120, 123; fair, 145 

Electoral College, 89 

Electors, presidential, 19, 88 

Elizabeth, Queen, 91 

Equity Court, 103 

Essentials of American Constitu- 
tional Law, The, 29, 68 

Essentials of International Public 
Law, The, 46, 141 

Executive, the, Ch. IX: duties, 
93; departments,- Ch. XI 

Executive, limited, 29, 91; 
poAvers, 92; duties, 93, 94, 107 

Experts, urban service of, 58 

Extradition, law of, 45 



Fairlie, J. A., 93 

Federalist, the, 4, 68, 82, 83, 84, 

95, 106, 143, 146, 147 
Finley, J. H., 92 
Florida, 20; purchase, 34; courts 

of, 101 
Ford, Paul L., 68 
Forestry Department, 112 
Foster, J. W., 141 
Franklin, Benjamin, 31, 32, 113, 

129 
French judicial system, 103 
Functions of government, 29 



G 



Garner, J. W., Introduction to 
Political Science, 9 

Georgia, 122; sessions of legis- 
lature of, 127 

Gerrymandering, 73 

Gettysburgh Address, 32 

Goodnow, F. J., 114 

Government, republican, 4, 17, 
143; fundamentals of, Ch. 
II; functions, 29; stability of 
American, 33, 131; objects of, 
35; of IT. S. limited, 35, 36; 
protection, 43; the btate, 
federal in form, 51; the city, 
federal in form, 51; "com- 



mission," 59, see Ch. VI; 

coordination of parts of, 68; 

basis, 75, 76; representative, 

85, 86; The Principles of 

American, Ch.XV; purpose of, 

143; "checks and balances," 

143, 145 
Government of American Cities, 

The, 60 
Government of the United States, 

National, State and Local, The, 

39 
Governor, the (see Executive, 

and Ch. IX), 88-95 
Greeley, Horace, 93 



H 



Hague Tribunal, 148 
Hamilton, Alexander, 38, 68, 82, 

83, 84, 91, 115 
Hamilton-Burr duel, 131 
Hamilton's Ideas in Marshall's 

Decisions, 79 
Hanseatic League, 47 
Harding, President, 130, 137, 141 
Hart, Thomas, 85 
Hayes, R. B., President, 121 
Health Department, 112 
Henderson, J. W., 80 
Hershey, A. S., 46, 141 
History of Cumulative Voting 

and Minority Representation, 

The, 86 
History of the Formation of the 

Constitution of the United 

States of America, 68 
History of the One Hundredth 

Anniversary of the Promulga- 
tion of the Constitution of the 

United States, 68 
"Home-Rule," 23, 24, 51, 52, 

53, 54; reasons for, 54-60; 

objections to, 53 et seq. 
House of Representatives, U. S., 

63; State, 70 



Illinois, 52; constitution, 85 
Immunities, 41 
Indebtedness, 55 



i88 



Index 



Individualism, 3 

Injunction, writ, 110; law of, 

110 
Insurance Department, 112 
Interior Department, 109 
International law (part of the 
supreme law), 133; biblio- 
graphy, 141 
International Relations, Ch.XIV 
Introduction to Political Parties 

and Practical Politics, 123 
Introduction to Political Science, 

Garner, 9 
Isaiah, 32 



James II, 30 

Jay, John, 68 

Jefferson, Thomas, President, 
115, 148 

Judges, tenure in Massachusetts, 
21; county, 23; learned in the 
law. 105 

Judiciary Act, 1789, 98 

Judiciary, limited, 30; the, Ch. 
X; the American, 106 

Jurisdiction, 7; original, appel- 
late, 66, 97; final, 98, 99; of 
courts of law, 102, and Ch. X 

Jury, 106 

Justice, 11; Department, 112; 
principle, 146 

Justices, 12; Court, 103 

K 

Kentucky, 136 
King, philology, 90 



Labor Department, 109, 112; 
Party, 117 

Law, the Supreme (see U. S. 
Constitution), 4; the "higher," 
36; Ch. VII; title of, 77; due 
process of, 97; Comparative 
Administrative, 114; inter- 
national, 133; by whom made, 
144 

League of Nations, 148 (and 
bibliography ib.) 



Legislation, special, 78, 79 

Legislative, limited, 30; the, 70 

Legislature, State, 18, 19; powers 
of, 63; Ch. VIII; of Pennsyl- 
vania, 78; American Legisla- 
tures and Legislation, 87; 
sessions, 127 

Le Principe, 141 

Lieutenant-Governor, 89 

Lincoln, 31, 32, 44, 111, 115, 
117, 129, 130, 146 

Local Government in Counties, 
Towns and Villages, 92 

"Lock-outs," 125 

Louis XIV, 76 

Louisiana, subdivision of, 23; 
purchase, 34, 119; constitu- 
tion, 62 

Lusitania, the, 132 

M 

Macchiavelli, 141 
Macdonald, William, 39 
Madison, James, President, 4, 

21, 38, 68, 83 
Majority rule, 45, 145 
Malfeasance, 144 
Mandamus, writ, 110; law of, 

110 
Manila, 48 

Manual of State government, 26 
Marshall, John, 5; Life, see 

BeveridgejSOfGG; Constituiional 

Decisions of, 69, 106; truism 

of, 79 
Maryland, constitution, 139 
Massachusetts, 20; constitution, 

30, 77; Convention of 1820, 81; 

courts, 102 
Mayors' court, 104 
McKee, T. H., 118 
Merit system, 110 
Michigan (senatorial election 

case), 119; constitution, 128 
Mill, J. S., 85 
Mines and Mining Department, 

112 
Minority, the, 83 
Mississippi, 71, 72, 73; constitu- 
tion, 128, 138 
Missouri, 52, 75 



Index 



189 



Monarchy, 3 

Money, 33 

Monopoly, federal, 33, 34 

Montana, 135 

Montesquieu, 146, 147 

Morality, 146 

Munro, W. B., 39, 60 

N 

Nation, 7 

National Platforms of All Poli- 
tical Parties, 118 

Nationalism, The New, etc., 8 

Navy Department, 108 

Newberry-Ford case, 119 

New Jersey, 20; courts, 102, 121 

New York City, 48, 77 

New York State, 48; districting, 
72, 73, 75, 121; constitution, 
128 

Nevada, constitution, 138, 139 

Nomination, 116 



O 



Office, no life, 21; incompatible, 
76 

Ohio, 52, 74; constitution, 85, 
121 

Operation of the Initiative, Ref- 
erendum and Recall in Oregon, 
82 

Orphans Court, 103 

Ostrogorski, M., 123 

Outlying possessions, 28; U. S. 
Constitution not made for, 48 



Paine, Thomas, 130 

Panama, 137 

Parish in Louisiana, 23 

Parties, political, Ch. XII 

People, the, 6 

Pennsylvania, 52, 74; Legisla- 
ture of, 78; minority represen- 
tation in, 86 

Persons, the basis of govern- 
ment, 17, 50, 75 

Philadelphia, 24 

Philippines, the, 142 

Pittsburgh, 24 



"Planks," 116 

"Platforms," 116 

Police Court, 103 

Police power, 7 

Political Parties, Ch. XII 

Politics, philology of, 47 

Pope, Alexander, 113 

Population of U. S., 122 

Porto Rico, 142 

Possessions, outlying, 28; U. S. 
Constitution not made for, 48 

Post-Office Department, 108 

Powell, T. R., 69 

Power, 14; of U. S. Government, 
35; how much delegated, 36, 
37; delegated, 62; legislative, 
63; Congress, 64, 65; judicial, 
96-106; limitation of, 134, 145 

Preamble, 10 

President, the, 65 (see Ch. IX) 
88-95; advisors {see Cabinet) 
108, 109 

Principles of American Govern- 
ment, the, Ch. XV 

Principles of Constitutional Law, 
39, 68 

Private international law, 140 

Privileges (chartered), 91 

Privileges and immunities, 41, 
42; law of, 45 

Probate Court, 103 

Process, due of law, 106 

Public Opinion, Ch. XIII 

Public works, 24 



R 



Railroads and Canals Depart- 
ment, 112 

Ray, P. O., 123 

Reinsch, Paul R., 87 

Relations, federal, 21 

Representation, principle, 4, 6, 
26, 28, 38, 45, 53, 75, 82; 
minority, 84-86; propor- 
tional, 85, 90, 95, 122 

Representative Government, 85 

Representatives, 4; Election of. 
The, 85 

Republican, form, 4; guaranteed, 
25, 38, 122, 145 

Republican Party, 117 



190 



Index 



Right to vote, 41 
Rights, civil, political, 40, 41 
Roads and Highways, Depart- 
ment, 112 
Rome, 47 
Russia, 137 



St. Augustine, 141 
St. Louis, 24 
Schools, 55, 59 
Schulz, Birl E., 82 
Scott, James Brown, 140 
Secretaries (Cabinet), 108, 109 
"Self-determination," 51 
Senate, U. S., 63; State, 70 
Senator, U. S., election of, 18 
Sessions, legislative, 127 
Shaw, C. J., opinion of, 114 
Sinking-Fund Department, 112 
Sources of the Constitution, 95 
Sovereignty, Ch. I, 3, 6; "resid- 
uary," 7, 8, 15; State, 66; a 
difficulty, 147 
Spirit of Laws, 146, 147 
"Spoils" system, 110 
State, 5; the American, Ch. Ill; 
defined 17; Legislature of, 18; 
federal relations of, 21; inter- 
State relations, 22; equality 
of, 21, 22; independent, 25; 
manual, 26; judges bound by 
U. S. Constitution, 28; sover- 
eignty of, 66; Courts, 101, 102, 
103, 104; Department, 108 
Stevens, C. E., 95 
Storey, Joseph, 39, 68 
Stowe, Harriet Beecher, 131 
"Strikes," 130 

Supreme Court, 14, 65, 66, 96, 99, 
100; members of, 100; of State, 
101 et seq. 
Supreme Law, Ch. VIT; con- 
strued, "strict," or "liberal," 
117; international law part of, 
135 
Switzerland, 136 



Taxation and Finance, Depart- 
ment, 112 



Taxes, 4, 11, 54, 117. 146 

Tennyson, Alfred, 147 

Territories and Colonies, 93 

Territories, U. S. Constitution 
not made for, 16, 48 

Thebes, 47 

Things, not the basis of govern- 
ment, 17 

Title of law, 77 

Treasury Department, 108 

Treaties, 96, 133, 134 



U 



Uncle Tom's Cabin, 131 
United States, the, Ch. IV; 

power over elections, 121 
Urban (interests), 49 



Venue, 66 

Versailles Conference, 116 

Vice-President, 89, 90 

Voters, 43 {see Citizen, Citizen- 
ship), urban, 56; in U. S. A., 
122 

Voting, compulsory, 122 

W 

War Department, 108 

Washington, George, President, 
115 

Washington (State, administra- 
tive code of), 114 

Webster, Daniel, 14; quoted, 81 

West Virginia, 44 

Willoughby, W. W., 39, 68, 93 

Wilson, Woodrow, President, 
116, 121 

Wisconsin, 73 

World-Republic, 148 

World-Unity, 140 

World War, 116 

Wrong, legal, 13 



Yaker, case of, 136 
Young, James T., The New 
American Government, 38, 111 



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